Ben Chapman: Is my right hon. Friend aware that antisocial behaviour caused by young people who have drunk alcohol sold by irresponsible vendors of one sort or another is a major cause of concern, whether the constituents are in Heswall, Bebington, Bromborough or Eastham? Although the powers in the Licensing Act are welcome, in the past the police found, for example, that the trade would use ruses such as changing the landlord so as to have a new, clean figure in the premises where the record of the premises was poor to avoid revocation. Can he assure me that the powers in the new Act will be much stronger, much more effective and benefit my constituents much more than the previous provisions?

Hazel Blears: I am not sure whether Home Office Question Time is turning into happy hour, but we seem to having an extensive discussion on this issue.
	We should certainly take account of pressures on the police. According to Rick Naylor, president of the Police Superintendents Association,
	"Extended licensing hours are not a concern for us. The problem exists now with all pubs and clubs closing at two set times, spilling out thousands of people onto our streets . . . We believe that by a more gradual dispersal of the crowds over a longer period of time, these problems would be significantly reduced."
	However, he also welcomed the possibility that licensed premises would have to contribute not just to policing costs but to other local costs of disorder on our streets. That is a statement from the police that they are preparing to deal with the issues, and in fact they are dealing with them now.

Kelvin Hopkins: I have recently heard allegations and received evidence that mini-markets at garages in my constituency are selling alcohol to under-age people. Does not my hon. Friend agree that withdrawing those mini-markets' licence to sell alcohol would be the most effective way of stopping them doing that?

Kevan Jones: A lot of the focus has been on 24-hour drinking in respect of the new Act, but does my hon. Friend agree that the provision to give local people a say not only in licensing policy but in individual applications is welcome? It has been welcomed wholeheartedly in local government, most recently in the north-east by the new Liberal Democrat chair of Newcastle city council's regulatory committee, Anita Lower.

Caroline Flint: We need to remember that one of the reasons why some of those funds are ring-fenced is that communities have asked for that to be done. That is partly because people think that some issues, such as the rural crime fighting fund, are important. Let us look at that against a real terms increase of 21 per cent. in police funding since 1997, and an increase in the number of police officers—not forgetting the community support officers, opposed by the hon. Gentleman's party. At the end of the day, we can provide more resources from central Government, as we have done. We have given more attention to the crimes that are of most concern to the community. We have looked at ways of ensuring that we reduce bureaucracy, and we have given opportunities to civilian staff to do some of the jobs that police officers clearly should not be doing because they should be out there catching criminals.

Caroline Flint: I agree, and that is exactly what we are trying to do. We welcome the support of MPs on both sides of the House to make that point to their chief constable. Let us not forget that under the Tories there was no ring-fencing and police numbers went down.

Tom Harris: How many failed asylum seekers resident in (a) Glasgow, Cathcart and (b) the United Kingdom are in receipt of hard case payments; and if he will make a statement.

Jack Straw: With permission, Mr. Speaker, I would like to make a statement on the elections that were held in Iraq yesterday.
	First, however, let me deal with the tragic crash of an RAF C-130 Hercules aircraft. As the House will be aware, the aircraft came down approximately 30 km to the north-west of Baghdad, at half-past four in the afternoon, Iraq time, yesterday. The aircraft was flying from Baghdad international airport to Balad airbase. The site of the crash has been secured, and we are investigating its cause. The House will understand that it would be wrong at this stage to speculate about possible causes. Ten United Kingdom service personnel were onboard the aircraft and, sadly, are presumed killed— nine were from the Royal Air Force and one from the Army. Their next of kin are being informed. The Ministry of Defence will release the names of those who were onboard only once this process is complete and the families have been given time to inform other loved ones and friends. I know that the whole House will join me in sending our deepest condolences and sympathy to the families of these brave men and to their comrades.
	Yesterday's elections in Iraq demonstrated the vital importance of what those service personnel and thousands of other brave British servicemen and women have been helping to achieve in Iraq. Only two years ago, Iraq was still under the sway of one of the most ruthless dictators in the world. Dissent was punishable by torture and summary execution, with an estimated 300,000 people buried in mass graves during the period of Saddam's dictatorship. The last time that the Iraqi people voted was in the staged elections of Saddam's tyranny, with just one candidate—a man who had been flouting the will of the United Nations for 12 long years. Yesterday, in contrast, the elections took place in the implementation of the will of the United Nations, for it was the Security Council, in resolution 1546, that laid down the timetable and process for the elections and the steps that follow. Yesterday, the Iraqi people had a choice of not one candidate but 8,000 candidates for the new National Assembly, from 111 different political parties and entities, with 11,000 candidates in regional and Kurdish elections. I am delighted to say that one third of the candidates in the national elections were women.
	Although turnout figures will not be available for some days, it is already clear from initial estimates that a substantial proportion of the Iraqi population took part in the elections. Turnout appears to have been especially high in the north and south of the country, among both men and women. Turnout in Sunni majority areas was lower, mainly because of the high penetration of insurgents threatening to kill voters. However, in other areas where Sunni Arabs were able to vote freely, they appear to have done so in good numbers. Simon Collis, British consul-general in Basra, told me this afternoon that some 50 per cent. of Sunnis in that province may have voted. He described the extraordinary atmosphere in Basra, as families went out to vote, taking along their children dressed in their smartest festive clothing. Polling was also brisk in the mixed Sunni-Shi'a suburbs of Baghdad. In Mosul, extra polling stations had to be opened when turnout exceeded expectations.
	Yesterday's elections were monitored by some 22,000 domestic election observers, 33,000 party officials and some 120 international monitors accredited to the Independent Electoral Commission of Iraq. I arranged for three of the monitors to come from the House on an all-party basis, and my hon. Friend the Member for Forest of Dean (Diana Organ) and the hon. Members for Blaby (Mr. Robathan) and for Torridge and West Devon (Mr. Burnett) formed that delegation. My hon. Friend the Member for Cynon Valley (Ann Clwyd) also observed the elections, and Baroness Nicholson did so on behalf of the European Parliament.
	Electoral procedures are reported to have worked efficiently throughout the country. Jean-Pierre Kingsley, the Canadian head of the International Mission for Iraqi Elections, has described the election as a "very good process". I understand that my hon. Friend the Member for Forest of Dean—one of the three all-party observers from the House—has described arrangements in the town of Maysan as "model".
	I should like to pay tribute to the Independent Electoral Commission of Iraq and to its advisers from the United Nations—led by the quite exceptional international diplomat, Mr. Carlos Valenzuela—for their outstanding work in assisting the Iraqis and ensuring that yesterday's elections ran smoothly. I should also like to thank our ambassador, Edward Chaplin, and all our staff in Baghdad, Basra and Kirkuk for the excellent job that they do generally, but specifically in covering the elections.
	No one expected these first free elections in half a century to be perfect, but they went far better than many had anticipated, and they are all the more remarkable given the circumstances in which they were held. We have grown used to insurgents in Iraq who attack any and every group and organisation that is working to rebuild the country. The Iraqi people most of all have suffered from that terrorist violence, and the insurgents had made it clear that they would use the vilest means possible to stop yesterday's elections running smoothly or at all. Abu Mussab al-Zarqawi, a leader of the insurgency in Iraq, declared last week that democracy was an "evil principle". He and his henchmen—many, like him, are not Iraqis themselves—sent suicide bombers to attack polling stations and other areas associated with the elections, with the message, "If you vote, you die."
	Yesterday's elections, by contrast, represent a real blow to that disgusting campaign of violence and intimidation. In Sadr City in Baghdad, for example, a mortar attack at a polling station in a local school left a number of people wounded. However, multinational force troops at the site report that people simply helped the wounded and then, along with those who could do so, rejoined the queue to vote. In Sunni areas in central Iraq, large groups of people defied terrorist intimidation and walked several kilometres to polling stations to cast their votes. Those elections were a moving demonstration that democracy and freedom are universal values to which people everywhere aspire.
	The fact that not a single suicide bomber managed to get through the security cordons around polling stations is a great tribute to the bravery and effectiveness of Iraq's own security forces, who were in the front line. I pay tribute to them, and to the troops of the UN-mandated multinational force, who helped to maintain security around the polling stations. Several policemen were killed when suicide bombers who were unable to get through their rigorous searches simply blew themselves up. Our thoughts are with their families and those of all the Iraqis who lost their lives in yesterday's violence.
	As Iraq's Interim Prime Minister, Dr. Ayad Allawi, said this morning:
	"There will still be violence, but the terrorists now know that they cannot win".
	We have seen the determination of the Iraqi people to participate in building a more secure and democratic future for their country, and we now need to support them as they continue that process. The Independent Electoral Commission for Iraq expects to publish the results of the election within 10 days, and to certify those results by 20 February.
	Yesterday's elections were for a Transitional National Assembly of 275 members, who are elected on a wholly proportional system. The TNA's first task will be to elect a three-person presidency, which will in turn appoint a Prime Minister and Cabinet, which the TNA will be asked to approve. This Iraqi Transitional Government will then be sworn in and the Interim Government will dissolve, and we expect that to have taken place by the end of February. As UN Secretary-General Kofi Annan has said,
	"the success of these elections augurs well for the transition process".
	The new Assembly will then begin work on the next stage of the political process in Iraq—the drafting of a permanent constitution for Iraq—as set out in Security Council resolution 1546. Many Iraqi political and religious leaders, including Ayatollah Sistani, have made clear their wish to include Sunni groups in that process. I welcome Prime Minister Allawi's call earlier today for a
	"new national dialogue that guarantees that all Iraqis have a voice in the next government".
	There is also an important safeguard for both the Sunni and Kurdish minorities in the transitional administrative law, under whose terms the constitution must be approved: the constitution must receive an absolute majority of votes in a referendum and, in addition, it can be blocked by two thirds of voters in any three of the country's 18 provinces.
	The United Kingdom will continue to offer every support to the political process in Iraq as set out by the United Nations, working with our international partners including through the European Union. We shall seek an early meeting of the Sharm-el-Sheik group of Iraq's neighbours and G8 countries to build on international support for Iraq. We will continue to work for a central role for the UN in supporting the political process.
	The House knows that there have been deep divisions over Iraq policy in the past two years, but this election should unite us all. Yesterday, the Iraqi people in their millions showed their wish to embrace freedom and to shape the future destiny of their country. I know that the whole House and our country stand behind them as they pursue that historic endeavour.

Michael Ancram: May I thank the Foreign Secretary for his statement and for giving me advance sight of it?
	On behalf of Conservative Members, I join the Foreign Secretary in his expressions of sorrow at the crash of the RAF C-130 Hercules north of Baghdad yesterday. Our thoughts and prayers are very much with the families of those who have died in this incident. In Iraq, we have asked a lot of the dedication and professionalism of our armed forces, who have responded magnificently, and I pay tribute to those who have given their lives.
	Obviously, we must await the outcome of inquiries into the cause of the crash. Those planes, as I personally know, have a good safety record and are flown with the greatest professionalism. If there is any evidence that that crash was caused by hostile action, the Government will have many further questions to address. Can we be assured that the Foreign Secretary or the Defence Secretary will keep the House informed?
	In the meantime, there are certain questions which I hope the Foreign Secretary will answer now. Why was this plane flying to Balad? Is that a routine run for RAF C-130s, as is the regular flight from Basra to Baghdad? Has the whole site of the crash now been fully secured? We are told that an Australian airman was killed in the crash. Were any Americans involved?
	On yesterday's elections, may I join the Foreign Secretary in his warm words of praise for the way in which they were conducted, and for the courageous way in which the Iraqi people responded? The turnout and level of participation, even in the face of the gravest terrorist threats and violent intimidation, were not only encouraging but proved the doom merchants wrong. At the suggested 60 per cent. overall, the turnout would be a little higher than in our last general election, which should give us food for thought.
	On terrorist intimidation, I see that Interim Prime Minister Allawi announced today that seven foreign nationals had been held in relation to election day attacks. Are there any indications as to which countries those seven came from?
	While the vote was a major blow for freedom and democracy and against tyranny and terrorist intimidation, is not the key to its longer-term success the breadth of the turnout in all parts of Iraq and across the various ethnic and sectarian divides? I see from the reported remarks of the UN's Carlos Valenzuela that higher numbers of Sunnis than expected turned out to vote, and that in the former rebel stronghold of Falluja queues were seen forming outside polling stations. Is not that a welcome vindication of the anti-insurgency action taken by multinational forces in rebel areas over recent months? And was it not encouraging that, in most areas, Iraqi forces took the lead in providing the necessary security to allow the poll to proceed? I, too, pay tribute to them for that.
	Now we must look to the future. The new Transitional National Assembly and Government will now draw up, as we have heard, a constitution to put to the people in a referendum later this year. Does the Foreign Secretary agree that all elements of Iraqi society must be involved in the drawing up of that constitution if they are to feel a sense of ownership in it? What steps will be taken to ensure that, even where low turnout or boycott have caused under-representation of certain crucial elements in the new Assembly, those elements can still become part of the constitution-formulating process? Looking further to the future, can the Foreign Secretary comment on the words of Iraqi Interim Interior Minister Falah al-Nakib yesterday:
	"I think we will not need the foreign forces in this country within 18 months"?
	How does such a time estimate fit with the current rate at which effective Iraqi security forces are being trained and commissioned?
	Can the Foreign Secretary comment on the extraordinary reports today that since the war almost $9 billion of Iraqi oil revenue has gone missing from a fund specifically set up for Iraq reconstruction, and that mismanagement by the coalition provisional authority was to blame? I am sure that he will agree that that is a most serious allegation. What steps are he and his Department taking to follow this up?
	Yesterday's elections are a positive step towards a stable and democratic Iraq, which has been the long-standing goal of all of us who supported the war. Of course one poll does not deliver democracy; indeed, sometimes in history it has delivered the opposite. Yesterday's vote, however, was good for Iraq, the middle east and freedom. For that we must all be thankful. Our hope must now be that it will set the path for wider peace and harmony throughout that troubled region.

Jack Straw: I am grateful to the right hon. and learned Gentleman for his remarks. He asks me essentially to speculate about the causes of the crash yesterday. With respect, I would rather not do so. A board of inquiry has been established, and it is appropriate that it should deal with the causes.
	The right hon. and learned Gentleman makes a very good point about turnout. We do not know what the turnout will be, but if it is at or above 60 per cent., then on the basis on which Members are in this House it must be a highly legitimate election.
	The right hon. and learned Gentleman asks about the number of foreign nationals who may have been held by Iraqi security forces. I am afraid that I have no further information about them.
	The right hon. and learned Gentleman raises an important point about how inclusive the process of forming the Transitional Government will be. It will be very inclusive and, as I pointed out, Ayatollah Sistani, who represents a substantial part of the Shi'a majority, has made that clear. There are protections for both the Sunni and the Kurdish minorities, as I have spelled out, but it is also worth bearing it in mind that even if, as a result of a lower Sunni turnout, the Sunnis have fewer members in the Transitional National Assembly than their population would suggest, it would be open to the government's appointing panel to appoint Sunnis to the government, because it is not a requirement that members of the Iraqi government be members of the TNA.
	The mandate for the multinational force—it of course includes the British force—was established in resolution 1546, which states that the mandate will be reviewed in June this year and will terminate, unless extended by a further Security Council resolution, this December. Meanwhile, as the Iraqi Interior Minister implied, the question of whether foreign forces should be on Iraqi soil is entirely a matter for the Iraqis themselves. I heard Dr. Shaikhly, the Iraqi ambassador to the United Kingdom, say yesterday on the BBC that this election could not have taken place but for the presence of the multinational force of the United States, the United Kingdom and other contributor forces to the coalition. We proved yesterday that it is there not as an army of occupation, but as a force for democracy by, for and of the Iraqis. We will only stay there as long as we are needed, but how long that is depends almost entirely on how quickly the Iraqis' own forces can be built up. However, yesterday's experience was a good one in terms of their ability to deal with such matters.
	I have no further information concerning reports of missing oil money, but we are actively looking into the situation.

Jack Straw: I am grateful to the right hon. and learned Gentleman for his expression of sympathy and condolences concerning the victims of yesterday's crash of a C-130 Hercules.
	I understand the position in which the right hon. and learned Gentleman finds himself, but I should point out that there is no question of "triumphalism". No one feels triumphal about what has happened in Iraq, but there is a great sense of relief. I should also point out as gently as possible that we all have to bear responsibility for the consequences of our own actions. Some of us in all parts of the House—a majority—decided on a course of action on 18 March 2003 that has caused much heart-searching. It meant that each of us individually, as well as collectively, have come under a huge amount of criticism, and in some cases much worse. We all made that decision because we felt that it was the right decision and that the outcome, however difficult, would be to produce a better Iraq than that which had gone before. So it has turned out. We now have the beginnings of a democratic Iraq. No one can gainsay what happened yesterday, which we have seen with our own eyes and through the eyes of observers.
	I say to the right hon. and learned Gentleman, whose party has made so much of the position that it took in respect of Iraq, that the consequence of the decision that his party took was that there would be no democratic elections in Iraq. Saddam would still be in power, and the only elections that would have taken place in Iraq would have been a continuation of those ruthless elections in which the only issue was whether the leading candidate—the only candidate—got 99 or 100 per cent. of the vote. We bear responsibility for our actions, including the loss of life of British soldiers that has taken place. The right hon. and learned Gentleman's party bears responsibility for the strategy that he and his colleagues resolutely pursued, which, whatever their good reasons, had the consequence, whether intended or inadvertent, of keeping Saddam in power and crushing the very idea of democracy in Iraq. The British people can make their own judgment about that.
	Let me answer the other two questions that the right hon. and learned Gentleman raised. He asked what we are doing about water, sanitation and so on. We are doing everything we can. My right hon. Friend the Secretary of State for International Development is present. He and his Department have been indefatigable in pursuing the aid and reconstruction programme, along with other international partners. The one thing that has set back the reconstruction and rehabilitation of Iraq has been the terrorism. That is why we must have our multinational forces—British forces, United States forces and forces from other countries—as long as the Iraqi forces cannot cope themselves.
	The right hon. and learned Gentleman says we should make a commitment to withdraw our forces by the end of the year. If we were to decide that now, in advance of knowing what the security situation will be, we would be going back to the situation that his party wanted, where the forces of democracy are weakened and the forces of tyranny are strengthened. It would be utterly irresponsible for the House or the Government to make a premature decision about the withdrawal of British and other forces.
	It is for the Iraqis themselves to make that judgment. If the Iraqi Government were to say today that our mandate had ended, we would leave tomorrow, but so far they have said, and we all understand this, that they do not like the idea of foreign forces on their soil—nobody does—but they understand fully that without foreign forces on their soil for a period, they cannot rebuild their country and create the freedom, security and democracy that they so desperately need.

Robin Cook: May I join my right hon. Friend in saluting the courage of those millions of Iraqis who went to the polls despite the grim security situation in that country; and may I associate myself with his congratulations to our ambassador, Edward Chaplin, and his staff for the difficult and delicate task that they have had to perform on behalf of our country?
	Does my right hon. Friend agree that now that the forces of democracy have been released in Iraq, there is an obligation on us to listen to the demands of the newly elected representatives? Will he confirm that the great majority of the parties standing in yesterday's elections stood on a mandate for negotiation to end the occupation? Is my right hon. Friend sensitive to the fact that if we want to achieve a constructive and positive partnership with the new Assembly, we must convince it and the Iraqi public that we have a clear perspective for withdrawal within a realistic time line?

Jack Straw: I understand the basis of my hon. and learned Friend's initial comments. When I made the point about the consequences of people's actions, I did not say that people wished Saddam to remain in Iraq. It simply happens to be an obvious fact that a consequence—intended or unintended—of failing to vote for military action on 18 March is that Saddam would have still have been there and the elections would not have happened.
	I gave a full written ministerial statement about casualty figures in the autumn. I am happy to send my hon. and learned Friend a copy. The most reliable figures that are now issued come from the Iraqi Ministry of Health, although there are serious methodological difficulties about their categorisation—as some being caused by terrorists and others by the security forces. However, those figures appear to be the more reliable. The figures that The Lancet suggested, which range from 8,000 to 194,000—there was never an estimate of 100,000—need to be treated with the greatest scepticism.

Colin Challen: The process of the election has indeed been very successful, and I think we can all welcome that; but whether the election has been successful per se is for history to judge, perhaps three or four years down the line.
	Does my right hon. Friend agree that transparency must be at the heart of this? We want to avoid suggestions like those that were made after the Ukrainian elections, when it was said—perhaps erroneously—that western political participation funds had been used in a very partisan way. Should not the way in which the £5 million that the Government contributed to the Iraqi political participation fund was disbursed be published, so that everyone can see that it was given out fairly?

Christopher Leslie: I beg to move,
	That the Programme Order of 17th January 2005 in relation to the Constitutional Reform Bill [Lords] be amended as follows:
	1.   For paragraphs 1, 2 and 3(1) there shall be substituted the following—
	  '1.   The Bill shall be committed to a Committee of the whole House.
	  2.   Proceedings in the Committee, any proceedings on consideration and proceedings on Third Reading shall be completed in three days.
	  3.—(1)   The following shall apply to proceedings in the Committee.'
	2.   In the Table, at the end there shall be inserted—
	
		
			  
			 'Proceedings Time for conclusion of proceedings 
			 Third day   
			 Clauses Nos. 8 to 10, Schedule No. 1, Clause No. 11, Schedule No. 2, Clause No. 12, Schedule No. 3, Clause No. 13, Schedule No. 4, Clauses Nos. 14 and 15, Schedule No. 5, Clause No. 16, Schedule No. 6, Clauses Nos. 17 to 19, any remaining new Clauses relating to Part 2, any new Schedules relating to Part 2, Clauses Nos. 22 and 23, Schedule No. 7, Clauses Nos. 24 to 36 and 38 to 53, Schedule No. 9, Clause No. 54, any remaining new Clauses relating to Part 3, any new Schedules relating to Part 3, Clause No. 55, Schedule No. 10, Clause No. 56, Schedule No. 11, Clauses Nos. 57 to 74, Schedule No. 12, Clauses Nos. 75 to 93 and 96 to 104, any new Clauses relating to Part 4, any new Schedules relating to Part 4, Clause No. 110, Schedule No. 13, Clauses Nos. 111 to 117, Schedule No. 14, Clause No. 118, Schedule No. 15, Clauses Nos. 119 to 121, remaining new Clauses, remaining new Schedules, remaining proceedings on the Bill Five hours after the commencement of proceedings on the Bill' 
		
	
	3.   For paragraphs 4 to 7 there shall be substituted—
	  '4.—(1)   This paragraph applies to any proceedings on consideration and proceedings on Third Reading (together referred to as "remaining proceedings").
	  (2)   Remaining proceedings shall (so far as not previously concluded) be brought to a conclusion—
	(a)   at the moment of interruption on the third day, or
	(b)   one and a half hours after the commencement of remaining proceedings,
	whichever is the later.'
	Following the comments made by some hon. Members during the Second Reading debate on the Bill on 17 January, the Government and Opposition have had further discussions through the usual channels and agreed to change the programming of the Bill. The motion will allow the entire Committee stage to take place on the Floor of the House, rather than some the Bill's constituent parts being debated upstairs in Committee. The third day will now consist of the remaining proceedings in Committee, followed by proceedings on consideration and Third Reading. Many hon. Members expressed the view that that was a more appropriate arrangement. They prefer to see this constitutional matter taken through completely on the Floor of the House.
	I am happy to compromise and make that change and I hope that we can move on to the debate proper.

Clause 1
	 — 
	The rule of law

John Redwood: Does my hon. Friend accept that directly-acting European law, such as a European regulation that did not require the express consent of, or translation by, Parliament, would still be covered by his doctrine, because it would emanate originally from the European Communities Act 1972?

William Cash: Absolutely. That is where we enter extremely deep territory. We shall come on to those questions a little later.
	The fact is that it is open to the UK Parliament, where it is prepared to do so, as a matter of political will that I think is well overdue, to express itself by statute inconsistently with the European Communities Act 1972. In McCarthy's v. Smith, Lord Denning, and in the case of the metric martyrs, Lord Justice Laws, made it crystal clear that judges are under an obligation to give effect to the latest, subsequent, inconsistent, clear and unambiguous enactment of the House.
	For reasons that I shall not go into at this point in the debate, serious doubts arise both in the context of the European constitution and also in relation to the question of judicial drift, where it is becoming increasingly clear that judges tend to regard a separate body of law as being somehow superior to that which is enacted in the House. Not only must that be stopped; it must be clearly dealt with in relation to Bills such as this. Indeed, I have tabled new clauses entitled "Supremacy of Parliament" in relation to both the European Communities Act 1972 and the Human Rights Act 1998.
	It is well established not only in McCarthys v. Smith and in the metric martyrs case that subsequent legislation passed by the House must be given effect by the judges but also in the context of the Human Rights Act, which I suspect is a matter of considerable concern to the Government at present. By passing that Act, despite my dire warnings and those of others as to what would happen, the Government have in fact found themselves in a considerable judicial or jurisdictional mess. Indeed, in the cases of Simms and O'Brien, as I said when I occupied my previous position on the Opposition Front Bench, Lord Hoffmann unequivocally stated that it was open to the British Parliament to legislate inconsistently with, or even to repeal, the Human Rights Act 1998. He said that if the Government did so, they would have to bear the political cost, but the bottom line is that it is open to Parliament to legislate, as I said in my previous capacity, with respect to both the European Communities Act 1972 and the Human Rights Act 1998, inconsistently with those enactments. It is the duty of judges to give effect to enactments providing that the enactments in question are clear and unambiguous.
	That is what I mean by the words "that law" in my amendment. The rule of law means the rule of law exercised by judges in interpreting statute law and the common law. It is unnecessary for me to go into further detail on that question, as I have made my position abundantly clear.

Oliver Heald: May I just finish this point?
	This issue came into focus during the Factortame case, which concerned the UK's obligation under EC law to allow Spanish fishermen to fish in UK waters within prescribed quotas. The UK enacted laws in 1988 under which, to be entitled to fish UK waters, a vessel would have to register as British. Some 94 boat owners took the UK to court, claiming that those laws were incompatible with the relevant EC treaty and the common fisheries policy. Their case ultimately proved successful in the European Court, and UK law had to be changed.
	However, the interesting point came when an application for interim relief was made, in the first instance, to the UK divisional court. The court granted relief, but the decision was overturned on appeal and the Court of Appeal's ruling was upheld in the House of Lords. When the matter came before the European Court, the UK argued that Community law did not oblige or enable a national court to grant interim relief suspending the application of a national measure. The European Court ruled that where a national court would have granted interim relief to protect directly effective Community law rights but for the national measure, it must set aside the national measure. The full effectiveness of Community law would be impaired, it said, if a jurisdictional rule in the law of a member state prevented its national courts from granting interim relief.
	The House of Lords was under a Community law obligation to give effect to the European Court ruling, because it was automatically brought into English law by operation of section 2(1) of the 1972 Act. Since then, many have argued that if the law changing the fishing registration arrangements had expressly disapplied the 1972 Act, it would have been incumbent on UK courts to uphold the UK law, because of the sovereignty of Parliament.
	There has also been debate about the extent to which the decision on interim jurisdiction would affect situations where a different jurisdictional rule is involved, and about the extent to which the sovereignty of Parliament might be affected. It is clear that the old rule that a new Act takes precedence over an old one, and that any inconsistency is resolved by the doctrine of implied repeal, has been modified by the 1972 Act and by the Human Rights Act. Express disapplication of these provisions would be required in order to make an effective change in the law, if such a change conflicted with EU law. My hon. Friend the Member for Stone asked whether even that would be enough, and whether, if Parliament expressly disapplied the 1972 Act in respect of a particular Act, that would be effective in UK courts.
	Some argue that the European constitution takes this a step further, making citizens directly bound by the legal supremacy of Union institutions. My hon. Friend the Member for Stone has pursued these issues with Ministers, as has my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), and the answer to a written question reflects what they wished to establish. The Minister stated:
	"The ultimate guarantee of parliamentary sovereignty lies in the power of Parliament to repeal all or any of the Acts which give effect to the EU treaties in this country. It is within Parliament's power to legislate contrary to the UK's treaty obligations. This of course includes legislation that might impact on the effective implementation of Article I-10(1)—
	that is, of the proposed European constitution. The Minister's reply continued:
	"The result of so doing, however, would be to place the UK in breach of its treaty obligations." —[Official Report, 15 December 2003; Vol. 415, c. 732W.]
	What my hon. Friend the Member for Stone seeks to add to the Bill would, in his view, place that principle of parliamentary sovereignty firmly on the face of the Bill. It seems hard for the Government to deny him. The Minister may say that that is unnecessary, but that argument might apply equally to clause 1 itself, yet the Government accept the necessity of the declaratory effect.
	As the then Minister for Trade and Investment, who is now the Minister for Energy and E-Commerce, said in answer to a debate initiated by my hon. Friend on 24 March 2004:
	"our position has been entirely clear, and we have held it throughout. Parliament already has the power to legislate contrary to our treaty obligations"—[Official Report, Westminster Hall, 24 March 2004; Vol. 419, c. 317WH.]
	He went on to cite Lord Denning, who said in the case already mentioned, Macarthys Ltd. v. Smith, that it is always within Parliament's power to legislate contrary to the UK's treaty obligations. The Minister went on to point out that this would cause a good deal of trouble. It would certainly lead to serious discussions within the EU, but the question before us is not whether to have such an argument, but whether we are able to pass such a law, if we choose to do so, in a way that is effective in the UK courts. I believe that we are entitled to do that. Ministers seem to agree, so there is no reason not to add the words contended for by my hon. Friend.
	It is right to make it clear that the issue is of concern more widely than just to UK Conservatives. In both Germany and Denmark there is the belief that certain aspects of their constitutional law take precedence over EU law. That was asserted by the German constitutional court in the Maastricht judgment in 1994. It was hoped that there would be no conflict, but the judgment asserted the German court's right to disapply an inconsistent EU law. In Poland, senior academics argue that EU law has no primacy over the country's constitution.
	The most recent statement of the law in this area in the UK came from Lord Justice Laws in the so-called metric martyrs case, Thoburn v. Sunderland city council. After describing a hierarchy of statutes and identifying the European Communities Act and the Human Rights Act as "constitutional statutes", he went on to say:
	"Ordinary statutes may be impliedly repealed. Constitutional statutes may not."
	That is controversial. He continued, less controversially:
	"For the repeal of a constitutional Act or the abrogation of a fundamental right to be effective by statute, the Court would apply this test: is it shown that the legislature's actual—not imputed, constructive or presumed—intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible."
	He stated that what is required are
	"unambiguous words on the face of the later statute".
	My hon. Friend wishes to have parliamentary sovereignty written into the Bill, and there is no reason not to do that. He may disagree with the EU more than some— probably including me—but the provision is not about an argument with the EU. It is about the powers of Parliament and the courts, and I believe it reflects the current state of the law.

Paul Tyler: I understand that point, which is very interesting, but as I read it, the amendment and the new clause could not be included in the Bill together, so there is a potential conflict of interests.
	I pay tribute to our briefing from the Select Committee on Constitutional Affairs on the Bill and on the amendment. I hope to see that innovation more often from Select Committees. My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of that Committee, ensured that its third report of the 2004–05 Session set out an interesting and useful analysis of the way in which the Bill started its life in the House of Lords, referred to the concordat, to which much reference has been made—no doubt more will be made this evening—and included a helpful clause-by-clause comparison. The Minister may now be regretting that his colleagues in the other place decided to include clause 1, thus enabling us to have this sort of discussion. It might have been easier if it had been left out.
	Nevertheless, we welcome the clause, and we want to be sure that it will be sufficient as it stands. That is surely what our business is. As a non-lawyer with some experience of the law as a recipient, I have always inclined to the view that the simpler the law can be, the less it can be misunderstood and misinterpreted. I start from the basis that the Bill as it stands, which is very simple and straightforward, is preferable to either of the alternatives that we are considering.
	I understand the concern of the hon. Members for North-East Hertfordshire and for Stone (Mr. Cash) about providing further definition and exploring issues of enforceability. I fear that I lost the drift—that is probably the right word—of the argument of the hon. Member for Stone. He said—I hope that I am quoting him correctly—that his amendment would ensure that there was a clear statement of the current position, but he then paused and said that he had a proviso. His comments about the proviso went on for two or three more minutes, so the clarity of the position that he was describing was rather lost. It was curious that he then stepped further into the future and sought to anticipate the effect of the European constitution, which is not even before the House yet. As I understood it, his position is that he is not in favour of it, so it was curious that he tried to anticipate it.

Paul Tyler: I am just about to conclude.
	My point for the Minister is: I find it difficult to understand what would be added if the amendment or the new clause were included in the Bill, when as I see it, we already have a very clear statement of the rule of law. It seems to me that that is all we should be seeking to achieve.

Alan Beith: The remarks of my hon. Friend the Member for North Cornwall (Mr. Tyler) about the Select Committee report were kind and much appreciated. I hope that it proves useful to hon. Members in identifying the issues that have not yet been resolved.
	Considerable changes have been made to the Bill. many of which respond to issues that the Committee raised and were subsequently raised in the Lords. I am pleased about that, but the Bill has never appeared to me either to make, or purport to make, changes to the sovereignty of Parliament. Indeed, it does not purport to make changes in the rule of law. A question therefore arises about the necessity of the clause and any amendments to it.
	I welcome clause 1 because it became clear in Committee and in the other place that there was much concern among the judiciary and more widely that the future Secretary of State for Constitutional Affairs—as he was then to be—would not have or recognise the same duty to assert the rule of law in Cabinet discussions as was previously assumed to be the case. That was based on a rather rosy view of what happened in previous Cabinets, especially if we look back to some earlier, very political Lord Chancellors.
	More recently, we have had senior Lord Chancellors of different parties, of the sort that the Committee hoped we would get in future—people who had reached the end of their political career, were not looking for further office and did not have ambitions for other Cabinet posts. We believed that a model had been developed in which the Lord Chancellor upheld the rule of law. Perhaps an even more pressing reason for our support for that model was that the moment that the Lord Chancellor stopped sitting as a judge, it became inappropriate for him to take the judicial oath. Alternative provision was eventually included in the Bill, but the disappearance of his swearing the judicial oath was viewed as yet another way in which his commitment to the rule of law might be undermined.
	Even in recent times, one can make speculative comparisons about how far different Lord Chancellors would impress on their colleagues the importance of the rule of law. I remember Lord Irvine publicly dressing down a Minister on the independence of the judiciary, but I challenged the current Lord Chancellor because I could not find an example of his doing the same. I made suggestions about when he might have done so, for example, when the then Home Secretary, addressing the Police Federation, said, "We want only judges who help us to do our job." That obviously seemed to him to be an entirely innocent statement, but to me and others it seemed to represent a contradiction of the principle that judges are there to reinforce the rule of law, and not to do what happens to be convenient for the Government. The presence of this provision in the Bill is therefore welcome, as it addresses precisely those concerns.

Richard Shepherd: When lawyers, including our top lawyers, are presented with an Act of Parliament that abrogates what the right hon. Gentleman and I think of as the rule of law, they are bound to accept it. That is why a layman such as I needs the rule of law to be clarified and defined, and not simply through reference to that vague hinterland of Dicey or to judges' ruminations on the matter. The right hon. Gentleman was right to remind us of what the then Home Secretary said.

Oliver Heald: I strongly agree with my hon. Friend on his last point. He fairly made the point that the rule of law means a range of things to different people. My hon. Friend the Member for Stone (Mr. Cash) is not seeking to define the whole of what the rule of law may mean. He is trying to hone in on one aspect. I believe that defining what the rule of law should mean for this purpose is well worth doing.

Edward Garnier: These are mighty issues and I feel even more diffident than the good Shepherd, my hon. Friend the Member for Aldridge-Brownhills, in discussing them, but I shall try to join the discussion to this extent.
	My hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) seek to amend clause 1. Clause 1 is fundamentally intellectually dishonest, because it says:
	"This Act does not adversely affect",
	and it sets out what it does not adversely affect in subsections (a) and (b), but hanging like a ghost in the background is the implication that some other Act, either existing or, more likely, a future Act, may well do so.
	The clause seems to fall into the category of an early-day motion set into legislation. In my view, Acts of Parliament should not set out wishes or declarations, but should deal with concrete issues. I am not convinced that
	"This Act does not adversely affect . . . the Lord Chancellor's existing constitutional role"
	in relation to
	"the existing constitutional principle of the rule of law",
	not least because it is difficult to define what the rule of law is. The Opposition side had quite an interesting exchange about that. I am doubtful that the Bill will not change—and change quite radically—the Lord Chancellor's existing constitutional role, so I am wholly sceptical about clause 1.
	I am glad that my hon. Friends have spoken in support of their amending provisions, because they have enabled us to have a useful debate, but I am not sure that the two respective sets of arguments—both where they coincide and where they differ—answered the problems effectively.

Edward Garnier: I have no doubt at all that my hon. Friend spent a considerable amount of time studying law reports and legal textbooks. I am also sure that the expressions used in his amendment are well sourced, in so far as they emanate from eminent judges. What I am concerned about, however, are the practical consequences of placing his provisions into an Act of Parliament. I am worried that playing the Government's game by amending the Bill, rather than striking out clause 1 entirely, might be falling into the trap that the Government have set for us.
	The rule of law will not be protected one bit more by clause 1—still less, I am afraid, by new clause 8 or amendment No. 364. I understand all the arguments advanced by my hon. Friend the Member for Stone, in particular that our government and law-making systems have been internationalised over the past 20, 30 or 40 years. He and I have fears about further internationalisation of our domestic government system in the forthcoming year. I also understand that, as that happens, competition for influence and the demands of others to influence us will grow.
	That is a real concern for my hon. Friend, for myself and, I hope, for every Member in the House. We face a vast and, in many ways, unwelcome cultural change in respect of how this country is run. Power is seeping away from this Chamber and this Parliament, as is the ability of our courts to uphold the rule of law, whether it be the common law as revealed by the courts or statute law as interpreted by the courts. All that is seeping away to other places. As both Members of the House and citizens of this country, we need to be wary of that, to debate it and to do our best to protect against it.
	What really concerns me is that new clause 8, amendment No. 364 and clause 1 amount to nothing more than a lot of writing. They have enabled us to conduct this interesting discussion, but they do not protect our constituents or underpin the office of the Lord Chancellor, which the Bill as a whole fundamentally destroys.

Christopher Leslie: We are in danger of becoming a theoretical academic institution instead of focussing precisely on the provisions that should be included in the Bill. Clause 1 says that nothing in the Bill will adversely affect the rule of law, although I understand that there are different interpretations and definitions of that. When I respond to the points made by the hon. Member for Stone (Mr. Cash), I shall explain why it would be neither helpful nor useful to go into definitions of the rule of law, not least for the reasons outlined by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who said that statute tends to narrow definitions rather than widening them usefully.
	Subsection (2) of new clause 8 places an emphasis on ensuring respect for the rule of law. That could be taken as implying that the Lord Chancellor has a current duty to enforce the law against others, but that has never been his responsibility. Furthermore, there is some confusion about the meaning of subsection (3) of new clause 8. For example, would it mean that no judicial remedy would lie against the Lord Chancellor for a breach of duty if it did not lie there before? Could a court henceforth take the existence of a duty into account when deciding a question before it, and if so, how? Although I would not wish to pick too many holes in the drafting of the provision, we would be embarking on difficult territory if we started to set different worthy constitutional principles alongside each other or rank them in such a manner that they became judicially enforceable in different ways.
	Subsection (3) of new clause 8 implies that the Lord Chancellor might have existing duties in relation to the rule of law that are currently enforceable via judicial remedy, but we do not agree with that proposition. There are specific duties enforceable on Ministers that could be said to be part of the rule of law, such as those under the Human Rights Act 1998, but there are no duties in relation to the rule of law as a whole.

Christopher Leslie: I have said it before and I shall say it again: I see parliamentary sovereignty as absolutely prime in our constitutional settlement. I am slightly loth to embark on a discussion with the hon. Gentleman about treaties and how they interact with, or impinge upon, parliamentary sovereignty; suffice to say that I do not think that anything in the Bill undermines parliamentary sovereignty. On the contrary, the Bill helps to enhance our constitutional settlement by making the different functions of the legislature, the judiciary and the Executive clearer. For those reasons, and for the reasons that I gave in comments on both the amendment and new clause 8, it would not be wise to include those provisions.
	Clause 1 adequately and judiciously hits the mark in helping to placate those who may feel that in some way the change in the office of Lord Chancellor is diminishing that officeholder's role, and in defending the existing principle of the rule of law. That is why clause 1 is in the Bill and I urge hon. Members to withdraw their amendments.

The Chairman of Ways and Means: With this it will be convenient to discuss the following: Government amendments Nos. 19 to 324.

Christopher Leslie: Indeed we are debating it here. We are at the beginning of our extensive debates on these matters. I say to my hon. Friend that I will try to be as brief as possible to allow as wide a debate as possible.
	The amendments replace references to "Minister" with "Lord Chancellor" throughout the Bill. The Bill as introduced into the Lords last year sought to abolish the Office of Lord Chancellor and therefore set down many functions as the responsibility of the "Minister". Since then, we have listened to concerns about abolition, expressed here and in the other place. The Government accept the decision of the House of Lords to retain the title and formal office of Lord Chancellor. Whether the post holder is called "Secretary of State for Constitutional Affairs", "Lord Chancellor", or has both titles, is not of great significance.
	As I said on Second Reading, what matters most is the substance of the post, the nature of the job, and whether it is reformed so that the post holder no longer has conflicting duties. If the role of the head of the judiciary can pass to the Lord Chief Justice, and with it many of the judicial functions that are incompatible with the political functions of a Cabinet Minister, the Office of Lord Chancellor can continue in that substantially reformed way. The Bill therefore retains the office of Lord Chancellor, but in a significantly altered and more appropriate form. To ensure that the Bill's terminology is consistent, the Government amendments replace references to the Minister with references to the Lord Chancellor. They ensure that it is immediately clear to everyone who reads the Bill that the Lord Chancellor is the Minister responsible for exercising those functions, so they do not need to cross-refer to another part of the Bill. That follows the precedent that functions vested in the Lord Chancellor in statute are, for the sake of clarity and ease of understanding, vested specifically in that office rather than in "the Minister".

William Cash: Clauses 4 and 5 will impose a duty on the Lord Chancellor and Ministers to uphold the independence of the judiciary. Of course, as I mentioned earlier in relation to the whole Bill, that duty would be enforceable by the judiciary itself as a matter of statute in terms of judicial review. In this context, I would assert that that in itself represents a radical gear change in the interpretation of statute law and, indeed, in the principles to which I shall refer in a moment. Yes, of course, there must be judicial independence—I would not want anyone to suppose that amendments Nos. 7 and 8 would affect that principle in any way—but there is also the Oath of Allegiance and salaries, to which are connected security of tenure and other matters, including the role of judges as embedded in the Act of Settlement 1700. In fact, as we well know, a range of conventions, rules and principles have been enunciated over the past several hundred years and are accumulated in the current state of the rule of law and in the specific question of judicial independence.
	Clause 4(7) goes too far, and the same applies under amendment No. 8, with respect to Northern Ireland, where much the same sort of thing obtains, although I have no doubt that Northern Ireland Members will want to make their own contribution on its application to Northern Ireland itself. I will therefore confine my remarks primarily to the issues that apply to the United Kingdom, rather than to Northern Ireland.
	Scotland is mentioned in clause 4(2), which states:
	"Subsection (1)"—
	on the duty of the Lord Chancellor and others to uphold the continued independence of the judiciary—
	"does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose."
	Again, I would prefer to leave those matters to any Scottish Member who may wish to intervene—I see that the Advocate-General for Scotland is here—but subsection (2) must be considered in relation to the background of the supremacy of the United Kingdom Parliament. It is well established that the Scotland Act 1998 is ultimately subject to the question of whether or not the United Kingdom Parliament might decide to amend or appeal any part or all of the Scotland Act 1998 itself. That may be a matter of great contention in Scotland, but I believe that it represents good constitutional law in so far as the United Kingdom Parliament is concerned.
	Clause 4(7) and the definition contained in subsection (8) go too far, because they would confer judicial independent in respect of international treaties. I believe that that would be to make radical, new law and entrench it in statue, given that those provisions would apply to treaties irrespective of whether they were endorsed by statute. Indeed, as I have mentioned already, we must remember that Lord Diplock made it clear in the commissioner of Excise case of 1967 that statute can, in fact, break treaties.
	I shall now address the question of what the words mean. In subsection (7) says:
	"In this section 'the judiciary' includes the judiciary of any of the following"—
	of course it lists the Supreme Court, but it then refers to
	"any other court established under the law of any of the United Kingdom".
	I do not seek to knock out those words, for obvious reasons, although I have the gravest reservations about their necessity in the light of the development of our constitutional position. I have a certain sympathy, to say the least, with what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said with regard to clause 1. Attempting to include all these things in statute and making them subject to judicial review is, in itself, an extremely unfortunate and dangerous course. However, that raises a particular question in respect of judicial independence: quis custodiet ipsos custodes? After all, the judges will be the ones who determine the question of judicial independence under the duty imposed by clause 4. What are we to do, therefore, about the reference to "any international court" in subsection (7)(c)?
	Subsection (8) says:
	"In subsection (7) 'international court'"—
	here is the definition—
	"means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of judicial nature, in pursuance of . . . an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or . . . a resolution of the Security Council or General Assembly of the United Nations."
	I find that a radical departure from the existing state of affairs. Indeed, it is clear that the European Court of Justice and/or the European Court of Human Rights at Strasbourg are included in subsection (8), given the absence of any words to exclude them. In fact, subsection (8) does not refer to the International Criminal Court, and I rather think that that will be included, too. I find it astonishing that subsection (8) refers to a
	"court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . a resolution of the Security Council or General Assembly of the United Nations."
	I look forward to hearing what the Minister has to say by way of justification.

Sylvia Heal: Order. Once again, I remind the hon. and learned Gentleman that interventions are meant to be brief.

Christopher Leslie: Indeed. Clause 4(8) specifies that any international court established by treaty to which the United Kingdom is a party, or by other organisations in which the United Kingdom takes part, is to be independent. Such courts and tribunals are referred to in the Bill as legitimately organised and established. It would be wrong to allow the amendments to remove respect for and protection of judicial independence in international courts, as set out in the Bill. I hope the House will rebut the two amendments.

Patrick Cormack: On a point of order, Mrs. Heal. My hon. and learned Friend the Member for Harborough (Mr. Garnier) just said in an extremely brief speech that something was a shame. To quote my favourite entertainer, Stanley Holloway, it is a shame and a sin that this Committee has not had the opportunity to discuss clauses 6 or 7 in the first three hours allowed for the Bill. I realise that you can do nothing about this matter tonight, Mrs. Heal, but could you, on behalf of the House, speak to Sir Alan and Mr. Speaker and see whether any representations can be made to those who draw up programmes to ensure that there can be some built-in flexibility, so that when the House is faced with a major constitutional Bill of this nature, it does not end up without any opportunity to discuss significant parts of it?

Sylvia Heal: The remarks that have been made are now on the record, but as has been suggested, I have no authority to make any such changes.

'(1)   For subsection (1) of section 12 of the Justice (Northern Ireland) Act 2002 (role of the Lord Chief Justice) substitute—
	"(1A)   The Lord Chief Justice holds the office of President of the Courts of Northern Ireland and is Head of the Judiciary of Northern Ireland.
	(1B)   As President of the Courts of Northern Ireland he is responsible—
	(a)   for representing the views of the judiciary of Northern Ireland to Parliament, the Lord Chancellor and Ministers of the Crown generally;
	(b)   for representing the views of the judiciary of Northern Ireland to the Northern Ireland Assembly, the First Minister and deputy First Minister and Northern Ireland Ministers;
	(c)   for the maintenance of appropriate arrangements for the welfare, training and guidance of the judiciary of Northern Ireland within the resources made available by the Lord Chancellor;
	(d)   for the maintenance of appropriate arrangements for the deployment of the judiciary of Northern Ireland and the allocatio t of the Courts of Northern Ireland is president of the courts listed in subsection (1D) and is entitled n of work within courts.
	(1C)   The President to sit in any of those courts.
	(1D)   The courts are—
	the Court of Appeal
	the High Court
	the Crown Court
	the county courts
	the magistrates' courts.".'.—[Mr. Leslie.]
	Brought up, and read the First time.
	Motion made, and Question proposed, That the clause be read a Second time.—[Mr. Leslie.]

Christopher Leslie: New clause 1A makes provision for a new statutory office and title of President of the Courts of Northern Ireland, which will be assumed by the Lord Chief Justice of Northern Ireland. The new clause sets out the responsibilities of the President of the Courts of Northern Ireland and the courts to which the presidency applies. His responsibilities, which are similar to those already provided for in respect of the Lord Chief Justice of England and Wales, include representing the views of the Northern Ireland judiciary to Parliament, the Lord Chancellor and Ministers of the Crown generally; and, when the Northern Ireland Assembly is restored, to the Assembly, the First Minister, the Deputy First Minister and Northern Ireland Ministers.
	The new clause also provides that the Lord Chief Justice of Northern Ireland will be head of the judiciary in Northern Ireland—a post that is, by convention, held by the Lord Chancellor. The Lord Chancellor will of course continue to have ministerial functions in respect of courts' administration on a broadly similar basis to that for England and Wales.
	The new clause is straightforward and mirrors many of the existing provisions for the consequential changes to the post of head of the judiciary in England and Wales by virtue of the reforms of the office of the Lord Chancellor.

Oliver Heald: The hon. Gentleman has quoted the concordat. Is he aware that Lord Woolf said of the Judges' Council that
	"the council considered it preferable, but not vital, that the Lord Chancellor should be a Member of this House."—[Official Report, House of Lords, 7 December 2004; Vol. 667. c. 758.]?
	So both the Constitutional Affairs Committee and the Lord Chief Justice believe that that is preferable.

Paul Tyler: I would like to do so, but first and foremost, the hon. Gentleman should recognise that the Select Committee took evidence and thought very carefully indeed about this issue. Hon. Members on both sides of the House are members of that Committee. Its report stated very clearly that its recommendation was that it was not essential for the Lord Chancellor to be a Member of the House of Lords. That was a balanced judgment from an all-party Select Committee reporting back to the House in very good time so that we could take account of hon. Member's views in our debate this evening. The Select Committee also said:
	"The size and budget of the DCA (now over £3 billion) has grown considerably in recent years and it might be thought desirable that its Minister be answerable to the House which controls supply."
	Perhaps the hon. Gentleman is about to say that the House of Lords should in future have a role in determining the supply issue, which has always been an important function of this House. We have always said that the other place should not be able to intervene on issues of that kind, so unless the hon. Gentleman wants to change the constitution in that way, I am afraid that his argument simply collapses.
	That is not the only anomaly in the Conservatives' argument. It is also extraordinary that they think it preferable that this very important post should be held by someone who is basically an appointee of the Prime Minister of the day, rather than that he or she should have a mandate from the electorate. This House provides every single one of us with a responsibility not only to Parliament and to our party, but to our constituents and to the electorate at large. It is rather curious, as my hon. Friend the Member for Somerton and Frome (Mr. Heath) said on Second Reading, that anyone should
	"want to institutionalise that arrangement, so that every future Lord Chancellor—every future Secretary of State for Constitutional Affairs—had to be a crony of the Prime Minister of the day, because only by that patronage does anyone appear in the other place".—[Official Report, 17 January 2005, Vol. 429, c. 597.]
	The Conservative party, my party and, I hope, the Labour party are absolutely determined to make the other place an elected House in due course. I think that the hon. Gentleman's party is still signed up to making a majority of those in the other place elected—I believe that 80 per cent. was the last proposal. My party is also committed to the election of a majority of those in the other place. I am not sure about the hon. Gentleman's views, but a substantial number of his colleagues in both Houses—including their leader in the Lords, and the Lord Chancellor himself—are committed to making the other place more democratic and more representative. That, after all, was what all Labour Members of Parliament were committed to at two general elections, and what they had a mandate to implement. It has not happened yet, and I suppose we should not hold our breath.
	The hon. Gentleman referred to an anomaly. He assumes a continuation in the other place of appointees of the Prime Minister of the day. If he is now resiling on the policy of his own party, let him say so.

Paul Tyler: You would probably call me to order, Mrs Heal, if I spoke at length about the proportional representation system that I—along with members of the hon. Gentleman's party and members of the governing party—hope to include in a draft Bill in a couple of weeks; but it will not be a list system.
	This Bill, we hope, will ensure that the Lord Chancellor of the future is the best person for the job. We would wish to ensure not just that that person was accountable to the Prime Minister and Cabinet of the day, in terms of collective responsibility, but that he or she was accountable to the nation at large through Parliament. We accept the argument that the best way to achieve that is to prevent any discrimination against any individual holding the post.
	I find extraordinary the way in which members of the Conservative party so patronisingly describe all those in the other place as being at the end of their careers—on the verge of their dotage, according to the hon. Member for Huntingdon. We believe that the occupant of this important post, responsible for a considerable budget for a very important Department, should be answerable, in the best possible way, to whichever House of Parliament of which he or she is a Member, and through Parliament to the people of this country. It would be absurd to prevent that improvement from being made by the Bill simply because of an assumption that the current Prime Minister will always block real reform of the other place.
	We will support the Government in a Division, to remove prescription and discrimination that we consider unnecessary and undesirable. We accept the view of the Select Committee, which has thought about the matter very carefully, that on balance it would be best to dispose of this proposal now.

Oliver Heald: The hon. and learned Lady appears before judges all the time. The Judges' Council says that that would be preferable, because it is looking for someone who is not particularly partisan and party-political to do the important job of upholding judges' independence. What is wrong with that?

Vera Baird: Let me make two corrections. First, I do not appear before judges all the time. Unlike several of the hon. Gentleman's colleagues, I am a full-time professional Member of Parliament who does not see this as a part-time job to come to in the evenings. Secondly, Lord Woolf may have mentioned that the Judges' Council had thought it preferable, but what he eventually said was this:
	"I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or any particular title to enable him to exercise those functions."
	I am sure I have made my point firmly enough, but let me repeat it. What other democratic institution anywhere in this century will legislate to remove from democratic control a Minister of the Crown with a budget of £3 billion? The short answer is none. I want to be able to ask, on behalf of my constituents, questions about the organisation of the courts, questions about the use of the legal aid fund, questions about the quantum of the legal aid fund—and that is exactly the right way for politics to be carried out. I should have the Minister in question answerable to me in the House of Commons. The Opposition would legislate to make that utterly impossible, and to emasculate—I wish there were a feminine term—a Member of Parliament, preventing that Member from performing a very important function. That is a democratic absurdity.
	What do the Opposition say? They say that even if a Member of the House of Commons is 60 or 70 years old, intent on retiring at the next election with no wish for further advancement, having already shown himself to be a great statesperson who everyone agrees could do the job, he shall be stopped from doing it unless he gives up his constituency, which he may be very happy to serve and which may be very happy for him to serve it. That applies to Members on both sides of the House. The best person for the job, who all in this House may agree is the best person for the job, will be excluded.

Vera Baird: I think it is a moot point. I am very puzzled by the other suggestion, that he should become the Lord Chief Justice; I am not sure where that has come from. I have obviously missed a bit of gossip somewhere along the way. The hon. Gentleman can update me on where he read that.
	Shall we stick to the point? Why is it necessary to oust the Lord Chancellor, whoever he may be, from the House of Commons? First, he is no longer to be a judge at all. The Tories were very happy when the Lord Chancellor was a political appointee who appointed the judiciary. That seems to be to be a much more dangerous position than anything currently proposed in the Bill. Indeed, the Bill remedies that. Now, however, the Lord Chancellor will not do that either. He will not appoint the judiciary; as is now, I think, commonly approved, the judiciary will be appointed by a Judicial Appointments Commission, quite separate from the Lord Chancellor. The recommendations will certainly be given to him, but the transparency of the process, and the limitations of his role in that process, make it very clear that he has less potential to intervene in judicial independence and less potential to appoint cronies—not that anyone has ever really suggested that that is what a Lord Chancellor has done. He is not a judge, so why do we need him to be a peer? He does not appoint the judges. Why do we need him not to be in the House of Commons? He is not in charge of discipline for the judges any more. He is not in charge of removal any more, on his own. It is all hedged around with qualifications and limitations. Very little of his role is to be applied to judges. So why is it now necessary to remove him to the House of Lords, when his role in the judiciary is much smaller? It is not necessary to do that to protect the judiciary. If that is why the Opposition say that that should be done, it is incomprehensible in context.
	On the concordat with the Lord Chief Justice, he pronounces himself satisfied that there is no threat to judicial independence from anywhere. I have just quoted him. He says that he is perfectly happy that the person should be in either House. He feels that being a peer would make no measurable difference and would not improve the situation. He speaks on behalf of the judiciary. If the judiciary is not concerned that that figure, who will still have an important though much reduced role, should be in the Commons, surely no one has a leg to stand on. Those are the very people whom the Opposition are pretending are likely to be threatened by the presence of the Lord Chancellor in the political hurly-burly.
	The Lord Chief Justice himself, who must have been negotiating now for over a year on the issue and gone through it in extraordinary detail, has pronounced himself utterly satisfied that this measure is completely unnecessary. One just gropes around for the reason for the proposal. I cannot find one. It is easily demonstrated that there is much less control over the judiciary now with this official, and therefore less reason to be concerned about his presence in what I call the political hurly-burly without believing that it is worse in here than it is in the other place.
	The hon. Member for Huntingdon (Mr. Djanogly) did not do fairly by the two Select Committees that have laboured mightily, reported properly and taken evidence on the issue. He did not say as clearly as he should have done that the House of Lords Select Committee, to which this Bill was, unusually, sent for very careful and long-term consideration, did not say that the Lord Chancellor should be a peer. It was divided on the issue. As has been made clear from the horse's mouth and from the horse's colleague, the Committee of the right hon. Member for Berwick-upon-Tweed (Mr. Beith) did not say anything of the sort either. The hon. Member for North-East Hertfordshire (Mr. Heald) is talking to me all the time about it being preferable. That is a very different thing from it being compulsory.

Vera Baird: The preferable position is achievable now without the that measure. Surely that is not beyond the hon. Gentleman. Let me move on because I am satisfied that it is not beyond him. He is starting to have to talk in riddles because he has lost the rational basis for what he is putting forward. The testimony from all the interested parties, Committees of both Houses and the judiciary is that he is wrong and he is completely out of it, so he is starting to talk in riddles.
	The purpose of the measure has nothing to do with judicial independence. Its purpose may be to avoid any suggestion of improper influence in the courts system because of too close control over the Lord Chancellor's appointment by the Prime Minister, perhaps—by any Prime Minister—or too much interference by other politicians. Of course, avoiding allegations of cronyism is very important but it must be said that the current Lord Chancellor is both a peer and a lawyer and that has not avoided such allegations against him. Indeed, on Second Reading, the hon. and learned Member for Harborough (Mr. Garnier) suggested that there was something wrong with the appointment of Lord Justice Potter as the president of the family division because he had been the "pupil master" of the Lord Chancellor.

Vera Baird: I doubt whether the hon. and learned Gentleman is going to muster very good arguments but I wait with bated breath for all of them. What he said was:
	"The Minister says that the Government want to modernise the operation of the judicial appointments system and make it transparent. Why then did the Lord Chancellor for the transitional period, as he likes to call himself, appoint his pupil master as president of the family division?"—[Official Report, Monday 17 January 2005; Vol. 429, c. 557.]
	If the complaint were about a lack of transparency in the current methodology, which is what I think the hon. and learned Gentleman is now suggesting, he could have mentioned the appointment of any judge over the last period after the institution of the Bill, but he did not choose to mention the appointment of Lady Hale, Mr. Justice Bean or Mrs. Justice Dobbs. He chose to mention the appointment of Lord Justice Potter, the "pupil master" as the president of the family division. It seems that that was a slur. There would have been no point in mentioning that particular individual if it had not been intended to slur the Lord Chancellor. I regret to say that the consequence was that it became dangerously close to slurring Sir Mark Potter, who is an absolutely excellent appointment.

Peter Bottomley: My hon. and learned Friend the Member for Harborough (Mr. Garnier) just said that he was making a point that the present arrangements allowed the Lord Chancellor to pick the new head of the family division. It is a pity that the Committee has had to hear the hon. and learned Lady refer copiously to her notes, which must have been written before my hon. and learned Friend made his intervention, because what she said in the last two or three paragraphs paid no attention to what he said and to what the Committee heard.

Vera Baird: The hon. Gentleman is wrong yet again. I heard what the hon. and. learned Gentleman affected to have said last time. That is what he has tried to put right tonight. I have read what he did say last time and what he said last time was a calculated slur on the current Lord Chancellor for seeking to "appoint his pupil master". Otherwise, as I have said, if the complaint is about the lack of transparency, why not complain about that lack in the other 10 judicial appointments made over the last few months? The position is utterly clear. It does not matter how many times the hon. Member for Worthing, West (Peter Bottomley) rises, he cannot erase what was said in Hansard.
	The fact that the current Lord basis that he is somehow inappropriate and somehow not independent because Chancellor is a peer has not stopped him from being slandered on the he was once the flatmate of the Prime Minister. That, too, has been said innumerable times by Conservative Members. Neither has being a peer or, indeed, a lawyer, protected him from the allegation that he is inappropriate because he did not stop the ouster clause from being placed in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, though, of course, that never happened. Scandalous and silly attacks against the current Lord Chancellor have been made and the fact that he is a peer has not protected him from them.
	It is ironic that the very party that has tried to use the fact that the current Lord Chancellor is known to the Prime Minister and was appointed to the peerage to become Lord Chancellor by the person who was his flatmate when they were both lawyers as evidence that the system is somehow under threat from the Prime Minister's cronyism is the same party that is now saying that the way to protect the legal system from an inappropriate threat is to ensure that the next Lord Chancellor has exactly the same professional qualifications as a senior lawyer and exactly the same status as a peer as the current Lord Chancellor. Conservative Members repeatedly say the opposite of what they previously said from one week to the other, tying themselves in silly knots. The current Lord Chancellor is, incidentally, an absolutely excellent holder of that office—and he would be if he were in the House of Commons.
	What protection are we to derive from the fact that the next Lord Chancellor must, if the Tories have their way, be a peer? Well, we would be so well protected that Lord Archer or anyone else in the peerage who had been convicted of a criminal offence could become Lord Chancellor. Such people are not debarred from holding their peerage. I guess, also, that the son of a son of a son of a son of a son of a notable peer, in whom the strain of high merit has grown a little thin over the years, could equally be appointed Lord Chancellor. By the skin of our teeth, we have just escaped the possibility that the Lord Chancellor could be someone convicted in South Africa of being involved in an attempted coup against the Government of Equatorial Guinea—the son of a former Prime Minister. Happily, he has only a hereditary baronetcy, but it is pretty close. [Interruption.] Some Conservative Members are acknowledged experts in the ranking of the hereditary peerage and have a degree of understanding way beyond my own in that respect.
	That shows how much protection there is in ensuring that someone is a peer. It does not make the slightest bit of sense. It is clear that making the Lord Chancellor a peer provides no protection. It is the calibre of the person that matters, and the calibre can be high, irrespective of whether he or she is chosen from the House of Commons or the other place. The overwhelming case for him to be in the Commons centres on the answerability argument.
	Let me now deal with the second proposal—that the Lord Chancellor should be a senior lawyer. It is not just a senior lawyer, though, but one with particular qualifications—

Edward Garnier: I shall not follow the hon. and learned Lady down the somewhat acerbic and personalised route that she took, because doing so advances neither her own arguments nor the general tenor of the debate. She is, of course, perfectly entitled to make her remarks and deliver them in whatever tone she wishes. I would not want to prevent her from doing so.
	I would like to concentrate on some of the differences in the two sides of the argument, not because I believe that one side is necessarily right and the other necessarily wrong, but because I merely want to express my opinion. I am not saying that, if either or both of clauses 2 and 3 were removed from the Bill, civilisation as we have known it for the last 3,000 years would cease to exist. It is silly to put such arguments into our minds, but it is important to appoint the best person for the job of Lord Chancellor.
	Given how the Bill has been amended and how the functions of the office of Lord Chancellor are to be radically changed, it would be more honest, in the end, to describe the Secretary of State for Constitutional Affairs—the head politician of the £3 billion a year public Department—as the Lord Chancellor. The person who will hold the title of Lord Chancellor after the Bill is enacted will not be a Lord Chancellor as we have all understood it for the past 30, 40, 50 or perhaps 100 years. He will still less be the same sort of Lord Chancellor who existed in the days of Henry II or even Henry VIII. We are dealing with the title "Lord Chancellor" differently from how Lord Irvine, Lord Gardiner, Lord Hailsham, Lord Kilmuir and any other relatively recent, but not extant, Lord Chancellor would have understood it.
	I described the Bill and clause 1 as intellectually dishonest, and there is something intellectually dishonest about pretending that the Lord Chancellor will be anything but a politician who heads up a spending Department. The title will be continued for political convenience and to prevent people from having hissy fits about its removal, but the job will not.
	We must be clear about the situation. I am perfectly prepared to have a Lord Chancellor with functions and a remit that are much more restricted than those of the current holder of the office. In the 1950s, the Lord Chancellor's Department had a tiny number of civil servants and little spending power. Beyond his ceremonial role, the Lord Chancellor did little more than chair the House of Lords and deal with the appointment of the judiciary. The judiciary was taken only from the Bar of England and Wales in the 1950s. There were only between 2,000 and 3,000 barristers in those days—perhaps not even as many as that—so it was perfectly possible for the Lord Chancellor personally to know the candidates from the Bar of England and Wales who would be of suitable quality for high judicial office.
	I understand that that is no longer possible. The Bar of England and Wales now numbers between 10,000 and 12,000 people and there are about 70,000 to 80,000 practising solicitors in England and Wales. Those people form the pool from which the judiciary may be selected, so the Lord Chancellor cannot possibly be expected to know all 80,000 to 95,000 lawyers who could be eligible for judicial office. The Lord Chancellor's job and functions are thus completely different from those in the 1950s and the early 1960s, but for all sorts of reasons—good and bad—we want the title to continue. As I said a moment ago, however, we are misleading ourselves if we think that the Lord Chancellor, as head of the Department for Constitutional Affairs, is doing anything like the job of the old Lord Chancellor.
	We also fool ourselves and perhaps get into a bit of a muddle if we try to rely on the words of Lord Woolf as being for or against the argument. During the previous Parliament, the then Home Secretary—he is now the Foreign Secretary—thought it appropriate to rely on extracts of correspondence that he had had with the then Lord Chief Justice, Lord Bingham. He made the mistake, as others have done in court and perhaps in the Chamber, of reading only an extract. He cited the extract in support of the Government's policy to curtail jury trials, but if he had read the whole letter, he would have discovered that the then Lord Chief Justice's views on the matter were not as he hoped that the House would understand. Similarly, those who agree with the Government's view on clause 2 should not look for too much support for their position in what Lord Woolf has said, or is reported to have said. There are two reasons for that. First, I suspect that his views, as expressed publicly, are designed to lead to some sort of compromise and are not necessarily the views that he might express in private. I have not discussed the matter with him, so I have no way of proving that one way or the other. I merely caution Members against relying too much on extracts from letters or documents penned by the Lord Chief Justice in support of arguments that they want to make.

Edward Garnier: My hon. Friend anticipates me, because I do not think that we should legislate by concordat. We should legislate in this and the other place, and I am not sure that it is proper for a judge, no matter how eminent or senior, to reach agreements with a member of the Government, or with the Lord Chancellor, in such a way as to design the legislation that the Government intend to push through the House. I accept that the Government have a vast majority and that all the arguments we make against their legislation will soon be tested in the Lobby. It does not take great powers of anticipation to know what the verdict of the Division will be. None the less, there seems to be a huge inconsistency in the way in which we treat the opinions of members of the House of Lords who are also members of the judiciary.
	We should be robust enough to put forward our own arguments. We may disagree; the hon. and learned Member for Redcar (Vera Baird) and I have had our disagreements. She is a passionate supporter of the supreme court and of the removal of the Law Lords from the House of Lords and their placement somewhere else. She is a passionate supporter of the reform of the Office of Lord Chancellor. I happen to disagree with her, but that need not be a cause of a war or a spat. They are just two separate opinions, which we are entitled to express. If she wishes to express another, I would be delighted to let her.

Edward Garnier: I shall obey your constraints, Mr. Stevenson, and return to the requirement that the Lord Chancellor be a member of the House of Lords.
	There is a perfectly respectable argument for leaving the Lord Chancellor where he is. As I said at the outset, what concerns me is that the Lord Chancellor's functions and job, from the enactment of this Bill, will be entirely different. We need a Lord Chancellor in the House of Lords who, as we shall discuss under clause 3, has a legal qualification or legal experience but deals with a Department that is much restricted and much more like the Office of the Lord Chancellor in the 1950s. That would prevent much of the complaint of the purists who want an accountable Cabinet Minister in this House. I am not convinced that Ministers in the other House are unaccountable. The Government ought to be accountable to both Houses of Parliament.
	I accept the point about supply. In the scheme of things, I dare say that £3 billion in the Government's total expenditure is a small amount, but as one academic has recently said, the Department has become a leviathan, consuming taxes much more than it traditionally used to do. I come back to the traditional point that we should return the Lord Chancellor's Office to its previous remit and then cut off a large part of its public expenditure aspects for some other Minister. Whether that Minister is in the Commons or in the Lords matters little to me; the ill-tempered arguments that have flowed across the Chamber this evening do not entirely hit the point. The point is that this Government have by stealth and intellectual dishonesty so altered the role of the Lord Chancellor that, effectively, his title, as attached to a member of the House of Lords, will be meaningless. The decision on whether he is a member of the House of Lords depends for its validity on the Lord Chancellor's being the office holder that he would have been 40 years ago and not the office holder that he would be next year or the year after.
	We will come shortly to deal with clause 3, for which other but similar arguments may apply. However, neither the Prime Minister nor our constitution is disadvantaged by the appointment of a Lord Chancellor who is a Member of the House of Lords, as long his accountability function is dealt with by a Member of the Commons. I urge Members who are in the Chamber—I fear that Members who are not here will not have the benefit either of my argument or of opposing views—to pay attention to what the Opposition have said, because our arguments are not without merit.

Alan Beith: I do not find the battle cry of "Let us return to the Lord Chancellors of the 1950s" very appealing. I am not terribly excited about the prospect of resurrecting Sir David Maxwell Fyfe, later Lord Kilmuir, and his like. Indeed, there were more political Lord Chancellors in those days than has been the case in recent years. However, that is the basis on which we should try to resolve this matter.
	Before I come on to with the position of the Constitutional Affairs Committee, I should like to deal with the issue of making Ministers accountable to either the House of Commons or the House of Lords. Whether the officer holder is a Member of the Lords or the Commons, the other House will have the problem of not holding him accountable. I strongly support my party's long-held view that we should have more mechanisms for holding Ministers to account in the House of which they are not a Member. We already have some mechanisms, including the Select Committee. Indeed, I have tried to encourage the hon. and learned Member for Redcar (Vera Baird) to seek membership of that Committee so that she can pose questions to the Lord Chancellor. In general, however, a modern Parliament should have mechanisms allowing Ministers from either House to appear not just in Committee but even on the Floor of the House to answer for themselves.
	That, however, is not the core of my argument. The Select Committee rightly recognised that there was a tension between the different functions of the office. The Lord Chancellor has ministerial responsibility for a large Government Department, which has just been accused of becoming a leviathan by the hon. and learned Member for Harborough (Mr. Garnier). If that is the case, it is because of the amount of money that we have to spend on legal aid to give people access to justice. The size of the Department's budget is directly related to that problem, and we must consider how we could contain that expenditure at a manageable level while securing access to justice for people who need it. However, the Department has a very big area of responsibility, which we recently increased by transferring to it, quite rightly, responsibility for tribunals, which should not be controlled by Departments with a direct interest in the outcome of their decision.
	Understandably, Members of the Commons may wish to question the man in charge, the Lord Chancellor, about that big Department. We have tried to defuse hostility and uncertainty by arguing that the Lord Chancellor has a responsibility to defend the judiciary, the rule of law and judicial independence, and needs status to do so. That argument has generally been accepted. We expressed the widely held view that we do not want in that position a Minister who is seeking further promotion. We said that the Lord Chancellor
	"has a special constitutional importance enjoyed by no other member of the cabinet and . . . is usually at the end of his career (and thus without the temptations associated with possible advancement)".
	That principle should be applied so that we find the kind of person we want, but it is not affected by the question of which House the candidate belongs to. I can think of people who do, and do not, fit the category in both Houses. I am not entirely convinced that the present Lord Chancellor has eschewed further political appointment, despite his membership of the Lords. Nor does membership of the House of Lords necessarily imply that one is old, wise and senior.
	Notable junior Ministers in the other place have enjoyed significant advancement. Until recently, for example, Baroness Scotland was a Minister in the Department for Constitutional Affairs. A shrewd man might put money on her obtaining further high office under a Government of her own party. A number of able people with aspirations to higher office have been Members of the House of Lords, but the Committee did not believe that they were the sort of people who would reassure the judiciary and other people concerned with the law that they would stand up to Home Secretaries and tell them that they are going too far and that their approach is not consistent with the Government's commitment to the rule of law and judicial independence.
	Home Secretaries almost invariably think that their proposals are the only way to deal with the latest security problem and outweigh all civil liberties concerns. It takes someone with some strength and someone who is prepared to stand up to a Prime Minister who may want to back his Home Secretary to take on the post. Those qualities can be found in either House; they need not be sought only in the Lords. In looking at the tension between those considerations, we as a Select Committee certainly felt that there was no compelling argument to insist that the Lord Chancellor should be a member of the upper House.

Oliver Heald: As far as the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who chairs the Committee, is concerned, may I join in the tributes to the thorough way in which the Committee went about its business? He said that one must consider the balance of the argument and a decision must be made. When the Judges Council examined the matter, however, it concluded that although the matter is not vital, it is preferable for the Lord Chancellor to sit in the other place.
	As my hon. Friend the Member for Worthing, West (Peter Bottomley) said a moment ago, standing up for the independence of the judiciary is not always an easy job, and requires a certain stature and seniority. I agree that, as far as I am aware, the recent incumbents of the office of Lord Chancellor have stood up for that essential independence.
	The hon. and learned Member for Redcar feels that the Commons contains excellent candidates for the office—perhaps she is right—and she mentioned the Budget too. In making an overall decision, however, one should reflect on the point that the other place is a less partisan House, and that the sort of person who might be appointed there or who is already there is likely to be the sort of person whom we want—somebody who is coming towards the end of their career, who has sufficient seniority and who is a lawyer. If it is preferable, and I believe that it is, to appoint a Lord Chancellor who is a peer, a lawyer and so on, this House should take the bull by the horns and make a decision—a point reflected in clause 2.
	My hon. and learned Friend the Member for Harborough pointed out that once the Bill is passed, the Lord Chancellor will not be the person he was. He will be tied down, regulated and controlled by concordat, because the judges are frightened that somebody who is not committed to judicial independence will be appointed. Such a person might be a young politician on the make, who might have less seniority and less common sense than previous incumbents, and who might not be a lawyer.
	We can introduce two extra protections if clauses 2 and 3 remain in the Bill. Having heard the arguments, we should divide in favour of retaining clause 2, if the Government want to leave it out.

Christopher Leslie: We have heard some desperately poor arguments from Conservative Members, and the sound of barrels being scraped. Clause 2 is clearly unjustifiable and should be removed from the Bill, and I urge my hon. Friends to oppose it.
	We have heard a number of interesting arguments, including the idea that in reality the Lord Chief Justice does not hold the views that he expresses. The hon. and learned Member for Harborough went on to say that it was intellectually dishonest to keep calling the post Lord Chancellor when the Government have fundamentally changed it by stealth. It is a bit rich to accuse the Government of intellectual dishonesty when the Government wanted to abolish the title of Lord Chancellor in the first place. As far as changes by stealth are concerned, the legislation and the concordat have been debated for more than a year in Parliament, which is hardly stealthy.
	The hon. Member for Worthing, West (Peter Bottomley) came up with all sorts of interesting suggestions, including that the Prime Minister could pick a Member of Parliament to be Lord Chancellor, but would then have to turf them out of this place, send them to the House of Lords and cause a by-election, because of the absolute objectionableness of having somebody elected in that post. What a dreadful, horrible concept that would be—I say that, of course, with irony.
	There are many reasons why the Lord Chancellor does not have to be a peer—a concept that my hon. and learned Friend the Member for Redcar (Vera Baird) eloquently advocated, as did the right hon. Member for Berwick-upon-Tweed (Mr. Beith). Indeed, the main argument of the hon. Member for North-East Hertfordshire (Mr. Heald) was that it might be preferable to have a Lord Chancellor who was a peer. I submit again that that is not what the Bill says at present. It says that that individual must be a peer, not "perhaps could be" or that it "might be preferable"—so that is not an argument in favour of clause 2.
	A peerage is no longer a prerequisite for a Lord Chancellor. The Lord Chancellor would no longer have to be a Law Lord—not least because, with the new supreme court, there will no longer be an Appellate Committee of the House of Lords. Ministerial functions of that reformed office are capable of being undertaken in either House of Parliament. It would be perverse to say that anyone can be Lord Chancellor except those who are elected. It would be ridiculous to prevent for ever the taxpayer from holding a Lord Chancellor to account, via this elected House, for that £3 billion of legal aid expenditure. A peerage is no guarantee that we would get the best person for the job. We should ensure that it is possible for the Prime Minister to pick either an individual who is in the other place or an elected individual if they are the best person for the job. I hope that the House will reject clause 2 as it stands.

Motion made, and Question put, That the clause stand part of the Bill:—
	The House divided: Ayes 119, Noes 272.

Christopher Leslie: I am hoping that the House will also reject and remove clause 3 from the Bill, for reasons similar to those that we discussed in the previous debate, and also for additional reasons.
	The clause insists that the Lord Chancellor must have at least two years' experience of holding high judicial office, or 12 years' experience as a qualifying practitioner of the law, as set out in clause 22—in other words, as a lawyer. The new role of the Lord Chancellor in the Bill means that it is no longer necessary to have specific legal qualifications or experience in practice, and there is no reason why this ministerial post should require particular qualifications when other ministerial posts do not. The Lord Chancellor no more needs to be a lawyer than the Secretary of State for Health needs to be a doctor, the Chancellor of the Exchequer a qualified accountant or the Secretary of State for Education and Skills a university lecturer.
	Hon. Members may well think that it is desirable for the Lord Chancellor to have legal qualifications, but that is entirely different from saying that the office holder must in all circumstances have had 12 years' practice as a lawyer or be a judge. The concordat with the Lord Chief Justice, which was debated earlier in today's proceedings, was negotiated explicitly on the basis that the reformed ministerial role requires no special qualification, and that was reflected in the comments made by the Lord Chief Justice that I, and my hon. and learned Friend the Member for Redcar (Vera Baird), quoted earlier.
	With the transfer of the judicial selection process to a new independent judicial appointments commission and the consequent limiting of the Lord Chancellor's discretion, there is no continuing requirement for him to have legal qualifications, as he will be acting on the recommendations of the commission and will hence be accountable to Parliament. It will be the job of the commission to weigh up the precise legal abilities of candidates.In respect of the Lord Chancellor's duty to uphold judicial independence and the rule of law, the key qualities are not legal qualifications, but more the character and judgment of the person holding the office. Legal qualifications do not guarantee that the Lord Chancellor will have the strength of character to fulfil those particular duties.

Christopher Leslie: No. As I say, I do not regard the fact that one might have reached a certain number of years of practice in a particular profession to be an absolute requirement for having the strength of character to guard the independence of the judiciary or stand up for the rule of law. Those are characteristics of an individual with strength of character and good sound judgment. Those are the qualifications necessary in the person who is best for the job; someone's being a lawyer does not fundamentally guarantee that they do or do not have them.It may be an advantage to have a certain knowledge of the law, but it is not a fundamental requirement.
	In fact, we should be very cautious of any notion that power should reside exclusively with one body or one group of individuals. The law does not belong to lawyers, and the office of Lord Chancellor should not belong to any particular profession or class of people. The Prime Minister of the day should be able to pick the best person for the job from the widest pool of candidates, not just from judicial office holders or senior lawyers. A senior lawyer may be the best person to perform the role, but we have no good reason to constrain that choice with statutory limitations in the rigid manner proposed in clause 3, and I strongly urge the House to resist it.

Jonathan Djanogly: The hon. Gentleman may believe that he has a good understanding of jurisdictional boundaries in England and Wales, but that would have to be seen. If he will hear me out, the jobs get even more complicated.
	We should note that the Bill has been complicated because the functions of the Lord Chancellor that do not require consultation with the Lord Chief Justice or his concurrence have been removed by the decision of the other place to retain the office of Lord Chancellor. Furthermore, many aspects remain on which the Lord Chancellor and the Lord Chief Justice need to work together regularly and closely. Although the Lord Chief Justice is to take over the Lord Chancellor's rule-making powers that are not exercised by rule committees in order to mirror the Lord Chancellor's existing statutory powers to allow or disallow the rules made by rule committees, the Lord Chancellor's agreement to any rules that the Lord Chief Justice makes will be required. I should like the hon. Member for Birmingham, Erdington (Mr. Simon) to try that one. We must note that the Lord Chief Justice will assume the Lord Chancellor's functions on making practice directions. Again, that will be with the Lord Chancellor's concurrence.
	Earlier, the Under-Secretary said that the number of years that a lawyer has practised does not by itself lead to qualification for the job. I agree to some extent. However, a non-senior lawyer, let alone a non-lawyer, would have a hard if not impossible time as Lord Chancellor, given the requirements of the role. A specific number of years of practice does not make someone eligible, but the job specification makes it unlikely that anyone other than a lawyer could do the job.
	When he moved his amendment, Lord Kingsland said that he understood that the Lord Chief Justice supported it. Earlier in the debate, Lord Woolf, Lord Chief Justice and Chairman of the Judges Council, summarised the council's position thus:
	At a meeting on 24 November last, the Judges' Council unanimously approved the Bill, subject to the concerns on which I must now address your Lordships. The first concern is that there should be a clear statement on the face of the Bill that the holder of my office will be the head of the judiciary. Without this amendment to the Bill, the Judges' Council is concerned that the retention of the title of Lord Chancellor could send a confusing message as to the role of the holder of my office in the future. The noble and learned Lord the Lord Chancellor recognises the validity of that point and is proposing Amendment No. 11 to Clause 3, which of course I support.
	Subject to that clarification, the Judges' Council would welcome the retention of an office called the Lord Chancellor. It would like to see a requirement that the holder should be a lawyer, ideally with similar qualifications to those required before a person can be appointed a High Court judge. The Lord Chancellor will not be a judge, however, and so he should not take the judicial oath . . . there is a proposal for a different form of oath in one of the groups of amendments.[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 7578.]
	The Bill delivered to us from another place provides a balanced approach to the role of the Lord Chancellor, and plays an important part in guaranteeing the continued independence of the judiciary. We consider a requirement for the Lord Chancellor to be a Member of the House of Lords and a senior lawyer to be part of that balance. That balance was carefully struck in the other place and it is the best formula for us to retain in this place.

Vera Baird: I am concerned about the precise nature of the clause, which requires a person either to be a High Court judge,
	to have held judicial office for at least two years,
	orand it is either/or so obviously one does not have to be a High Court judgeto have
	practised as a qualifying practitioner . . . for at least 12 years.
	Under clause 22, a qualifying practitioner must have a Supreme Court qualification under section 71 of the Courts and Legal Services Act 1990, which states that a person must have rights of audience in all the proceedings of the Supreme Court. That is of course not the new supreme court, but the old one, which is the Court of Appeal and the High Court.
	I am right about the meaning because the next tier of qualification in the 1990 Act is a person who has a High Court qualification, who is only a High Court advocate and not a Court of Appeal one. It is thus definitely a requirement under the clause that a person must for at least 12 years have been a person with rights of audience in the Court of Appeal and the High Court. That excludes an enormous number of senior and good lawyers.
	Many, many solicitors are not High Court advocates because that does not enter into their way of being. They may prepare, and know a great deal about, High Court proceedings, because they are the solicitors who back up senior High Court advocates with their preparation, but they are not themselves High Court advocates. One could imagine that commercial solicitors, family solicitors or senior partners in a number of types of solicitor's practices might be admirably qualified in every way and would fit the mould that even Opposition Members are hankering for, but they will be excluded by the clause. It is a bad idea; it could exclude many good people.
	On the other hand, the clause gives little protection from anything in the context of the Bar, because every member of the practising Bar is a Supreme Court advocate from day one as long as they remain a practising member of the Bar. Consequently, that does not require someone to be a senior lawyer; it requires them only to have been called for 12 years, which, as most Members who are lawyers will realise, is a calibre they will have attained by the age of about 33, 34 or 35. It does not require a barrister to be a senior lawyer and quite a few solicitors are likely to qualify. For instance, there is no protection in requiring a barrister of 12 years' call: someone might have undertaken magistrates court advocacy or industrial tribunal cases, or they mightbeing in private practicedo Chancery paperwork and never ever go to court, because they retain their status as a Supreme Court advocate by virtue of being in independent private practice. There is no protection of the kind that members of the Committee are seeking from that qualification. It is the wrong test. What is the point of it?
	The clause would excludewould it not?a senior professor of law who might be ideal but who had never become a High Court advocate. He may have been a solicitor, but he may not even have done that; he may have been a law commissioner for several years. He might be an admirable person to take up the post, yet under the clause he would be excluded.
	Equally, it seems to me that a professor of accountancy, who might have been seconded to the Court Service or have advised in detail about how the Court Service should organise its accounting procedures and finances, will understand its administration in far more detail than a barrister of 12 years' call possibly could, popping in and out of court to do a case or never going there at all. It seems to me that such a person could admirably understand the way the courts and their financing work and would be an admirable choice for that role.
	Somebody from social sciences who might have been called in to try to turn the courts into what we all want them to bean institution that puts the public participants firstmay also have looked in huge detail at the way in which courts function, in order to try to guarantee that witnesses, victims and so on are looked after properly. They will know extremely well from start to finish, from A to Z, far better than a barrister of 12 years' call, how the courts workand they will have known for many years. All such people will be excluded by the requirement of being a Supreme Court advocate, a High Court judge or a lawyer.
	The provision is quite unnecessary. It gives no protection and does the damage of excluding people from other than the legal profession who could be just as good as a lawyer. Insisting on such a provision in legislation has the additional danger of making the job look like it is there for the protection and promotion of lawyers. In fact, it is not; it is about administering a public service. As such, it can be done by anyone who has any of the range of qualifications that I have mentioned and many many more that I have not thought about. I urge Members not to vote for this silly clause.

Si�n Simon: Regardless of whether Opposition Members are preponderantly lawyers, their argument that in order to be Lord Chancellor one needs to be a lawyer is absurd. The right hon. Member for Wokingham (Mr. Redwood) characterised my hon. and learned Friend the Member for Redcar (Vera Baird) and me as having argued that anybody can be Lord Chancellor. I am arguing that anybody can be anything. Anybody can be Prime Minister; anybody can be Home Secretary. One does not have to have specialist knowledge or professional expertise to run a Government Department. That much ought to be obvious. I cannot imagine what people in the real world think when they see Benches stuffed full of lawyers arguing that the only people who can head up a law Department are lawyers. One does not have to be a teacher to run the Department for Education and Skills, one does not have to be a doctor to run the Department of Health, and one does not have to have been to Prime Minister school and gained 12 years' experience to be Prime Minister. It is self-evidently not the case, therefore, that one must be a lawyer to run the Department for Constitutional Affairs.
	The hon. and learned Member for Harborough (Mr. Garnier) keeps telling us that the Government are intellectually dishonest, because they have changed the nature of the job while keeping the name of Lord Chancellor. There can be few constitutional jobs that have changed more while keeping their name. It is ridiculous to argue that the difference between the next Lord Chancellor and Lord Mackay of Clashfern is greater than the difference between the present incumbent and the Lord Chancellor who, 500 years ago, did a completely different job in a completely different environment.
	The Lord Chancellor does not need to be a lawyer nor, as the Minister said, do we need to put such a requirement into statute. Indeed, it could be argued that it would be better if the Lord Chancellor were not a lawyer. As my hon. and learned Friend the Member for Redcar argued, if the holder of the post is a lawyer, it may, heaven forfend, make the Lord Chancellor look like a producerist, defensive protector of the interests of the legal profession. Lawyers are not necessarily interested in the impartial, efficient and admirable administration of justicesome of them may be interested in their own enrichment and vainglory. The notion that we should legislate to guarantee that they have one of their own to speak for and defend them is not just wrong but ridiculous.

Oliver Heald: I agree with one thing that the Minister said: the shadow Secretary of State for Health will be making appointments after the general electionand the sooner, the better.
	I shall comment on the speeches of the hon. and learned Member for Redcar (Vera Baird) and her partner in crime, the hon. Member for Birmingham, Erdington (Mr. Simon). Of course almost anyone could be appointed to the job if someone chose to do so, but given that it is an important job with particular responsibilitiesincluding standing up for the rule of law in Cabinet and ensuring that judicial independence continues, the residual role of making appointments to the judiciary and the other important roles that relate to the jurisdiction of the courtsit would be a help if the person concerned were a lawyer. Indeed, the Select Committee on Constitutional Affairs said that that may be a help.
	The Judges Council, which knows a thing or two about this, particularly wants the post holder to be a lawyer, ideally with qualifications similar to those required before a person can be appointed a High Court judge. Those on the council wanted that requirement not to enrich themselves or to be vainglorious, or anything of that sort, as described by the hon. Member for Birmingham, Erdington; they wanted it because the Lord Chancellor's role is important and such knowledge is extremely helpful in the role.
	It is all very wellthis is a bit like another point that I have madesaying that it is preferable to have a lawyer in the role of Lord Chancellor, but if it is preferable, why should we take second best? That is why I continue to argue that clause 3 is vital and that such a requirement would be helpful to the person in that role, so we wish to divide the House on the issue.

John Grogan: For the many, not the few is one of the principles on which this Government are built, and I would contend that in a modest way, listed events in their various guises since their inception in the 1950s reflect this aspiration. I would not argue that this is one of the most important debates to come before the Houseit is not a matter of war and peace or poverty, or concerning the many threats to our environmentbut it does affect the quality of life of many of our citizens, young and old, rich and poor, throughout the land.
	As I said, listed events have come in many guises down the years. They first came about through the Television Act 1954, which prevented any one broadcaster from obtaining exclusive rights to certain sporting events of national interest. Of course, in those days there were only two broadcasters: the BBC and ITV. The Broadcasting Act 1990 prevented listed events from being shown on a pay-per-view basis. Then the Broadcasting Act 1996, recognising the threat of subscription as opposed to pay-per-view television, protected the availability of live coverage of listed events on free-to-air television channels with national coverage. That is the basis of the current rules, which were enshrined in the Communications Act 2003.
	Although the legislation has changed down the years, the general principles underlying it have remained the samethat is, that some events are of such national significance, and in some cases of such international significance, that a large part of the nation wants to be part of them. People want to feel that they are in the stadium watching the Olympics, the grand national or the World cup finals. These events in some way bind the nation together.
	No one is saying that the terrestrial TV stations should have these events for free. They must pay a fair and reasonable price, and if there is a dispute, the price could be judged by the regulator, currently Ofcom. It is interesting that down the years the list has largely policed itself. As far as I am aware, there has never been a case in which Ofcom has had to deliberate on a fair and reasonable price.
	The recent history of the football World cup and the broadcasting of it illustrates the importance of the list to our nation. Some hon. Members may recall that the rights to the 2002 and 2006 World cup were sold by FIFA to Kirsch, a German broadcaster that tried to find a way round our listed events legislationany possible loophole. In the end it did a deal with the BBC and ITV whereby both those broadcasters paid far more than they had paid in the pastundoubtedly a fair and reasonable pricebut everyone in Britain will be able to see all the matches in Germany in the football World cup. That will not be true, incidentally, in Germany, where such stringent rules do not exist. Even though much public money will have gone into the stadiums in Germany, many of those matches will not be seen.
	At some stage in the next Parliament we need to review the list, particularly the A list consisting of events that must be shown live. It is live sport that quickens the blood, thrills the nation and inspires the young. The list was reviewed in 1990 and in 1998. The event that led me to seek the debate tonight occurred just before Christmas, when the England and Wales Cricket Board sold itself lock, stock and barrel to BSkyB. That came as a shock to many people. There were editorials about it in most of the national papers.
	The Prime Minister often says to the parliamentary Labour partyand of course I listen to everything the Prime Minister saysthat one of the best things in government is the small decisions one makes that can affect people's lives in various ways. I believe we made the wrong decision, though it was a small decision, when in 1998 the Government decided to remove test cricket from the A listfrom live coverage. BSkyB and the ECB lobbied for that. Subsequently the Secretary of State at the time, my right hon. Friend the Member for Islington, South and Finsbury (Mr. Smith), said he thought he had a gentlemen's agreement with Lord MacLaurin of the ECB that at least some cricket would remain on terrestrial television. That happened for a while under the subsequent television deal, and Channel 4 covered test cricket very well.
	However, as some of us warned, once my right hon. Friend and Lord MacLaurin were long gone from office, the next deal came around and the ECB sold out, as I said, lock, stock and barrel to BSkyB, and not for a great deal more money. The best figures that I have seen suggest that the difference between the Channel 4 bid, which was much the same as its previous bid, and the BSkyB bid was perhaps 10 per cent.not a large sum. Cricket will rue the day the deal was signed, for a number of reasons, the first of which is financial. When a sport sells out to satellite TV or subscription TV, sponsorship tends to decline. We have seen that in rugby. The Heineken cup has gone to satellite TV, and apparently Heineken is thinking of pulling out of the sponsorship. English rugby union sold itself entirely to satellite TV, but then stepped back.

John Grogan: My hon. Friend puts his finger on the key point in this debate. We are all looking forward to the test match series this summer, when England will play Australia for the ashes, and it is instructive to see how our major cricketing rivals deal with this issue. They have what they call anti-siphoning legislation, as they do not want their top sporting events to be siphoned away so that only a few people can see them. The extensive list that has been drawn up includes not only test matches in Australia, but test matches involving England and Australia that take place in England, as well as all cricket world cup matches.
	This year's series will be shown on Channel 4, because the old contract will still apply, but the next ashes series will be shown only on BSkyB. Perhaps the Australians realise that some poor boy in 2009 in some Australian suburb may get up in the morning, watch the end of the test match, perhaps at Headingley, and be inspired to go out and play cricket. Even if he sees the match on a battered television set and his parents will never be able to afford subscription TV, he may go out and play a makeshift game all day long and perhaps one day open the batting for Australia. Is it not sad that, when that same series and Headingley test match take place, a lad from not well-off circumstances in Hunslet or Harehills, just miles from the ground in Leeds, will not be able to be inspired by watching the match live? Highlights are not really the same thing; they do not quicken the blood in the same way.

David Drew: I thank my hon. Friend for giving way; he is making a very strong case. Does he agree that the problem is that we have lost not only test cricket, but all cricket, from mainstream television? Even with rugby or football, there were opportunities to watch the games, whether they were in the FA cup or different cup competitions in rugby. That will not be true of cricket, which has effectively sold its soul completely in respect of terrestrial television. That really is unacceptable.

John Grogan: The BBC needs to use all its channels to show some sport. Indeed, there have been some very good sports documentaries on BBC 4, and a few sporting events have been shown on BBC 3. As we move into the digital future, BBC 3, which is aimed at least partially at the youth market, would be a natural home for some sports.
	Before I mention a couple of other sports, I wish to underline that cricket gets a lot of public money each year. Between 2000 and 2004, cricket both at national and club level got more than 50 million of Government and lottery cash. If public money is being used to build some of the stadiums, it is beholden on the cricket authorities to ensure that people are able to see a little bit of what goes on inside them. The fear must be that cricket has sold its soul to BSkyB. Who will bid next time? Will the terrestrial broadcasters do so, or will BSkyB be the only bidder?
	I said that I would mention a couple of other sports. Tennis is worthy of mention, because it might be the next sport under threat. In Britain, only the Wimbledon finals are listed, not the Wimbledon fortnight. It was listed until 1991, but is now on the B-list, not the A-list. In Australia, strangely, the whole of the Wimbledon fortnight is listed and must be shown on terrestrial television. What a tragedy it would be if we could not see Tim Henman at Wimbledon. He may make the finals one day, but so far he has appeared only in the earlier part of the two weeks, when matches are not listed.
	The same applies to golf. Again, it is strange that the British Open is listed in Australia but not in Britain. There is also a case for listing the last day of the Ryder cup. Europe may be at its most popular in Britain during the Ryder cup, and it is a pity that we cannot see it live.
	I want briefly to mention the Central Council of Physical Recreation. I was rather distressed when I received its briefing for tonight's debate, although it was kind of it to provide it. It says that
	sport has never accepted the policy logic behind 'Listed Events'. This has always seemed to be a policy driven by broadcast considerations, as opposed to what is best for the sports themselves.
	I am not concerned with broadcast considerations, but with ordinary citizenssports fans, and sportsmen and women who play their sport in a village or suburban team for many years, then make the teas, coach, and try to find the next generation. They will never sit on the CCPR or in hospitality boxes, but if they are not well-off in their old age, should not theyand their grandchildrenbe able to see the great events live? I think that the CCPR, which calls itself, One voice for sport and recreation, but is really one voice for sports administrators, should rethink its policy.
	I want to draw the Minister's attention to two specific points. First, we need to review the legislation in the run-up to digital switchover, because it is not clear that it will all work, technically speaking, when that happens. Secondly, the European television without frontiers directive is to be reviewed in the next year or so, and I hope that during their presidency the Government will ensure that the clauses affecting listed events are retained.
	There is no better measure of the success of the policy of sporting listed events than that of the TV programmes that did well in terms of viewing figures last year. The England-Portugal game had 20.7 million viewers, peaking at 24 million during penalties, and was the most watched TV event of last year. The England-France game had 17.8 million viewers. Other events that feature in the top 50 are the never-to-be-forgotten Saturday night of the victories by Kelly Holmes and the 4 x 100 m relay team; the Olympics opening ceremony; and the grand national. If those events were not listed and went to the highest bidder, much of the nation would not talk about them at the bus stop, in the school hall and in the office, because they would not have been able to see them. That would diminish our nation.
	My requests of the Minister are modest. We are approaching the election, and I suggest that it would be appropriate to include in our manifesto a couple of sentences about listed events. That would show, first, that we are proud as a Government of our record on keeping and, indeed, extending them, and that we are committed to them post-digital switchover; and secondly, that at an appropriate time we will review them and decide whether there is a case for adding to them.

Estelle Morris: I congratulate my hon. Friend the Member for Selby (Mr. Grogan) on securing the debate and the duo whom he has brought with him, my hon. Friends the Members for Loughborough (Mr. Reed) and for Stroud (Mr. Drew), on participating in it at this late hour.
	I acknowledge the interest and expertise of my hon. Friend the Member for Selby and the part that he played in scrutinising the Communications Act 2003. Although that measure offered no major changes to the aspect of communications that we are discussing, it considered it.
	I join my three hon. Friends in acknowledging the importance of sport on television. The instances that my hon. Friend the Member for Selby gave, for example, of Kelly Holmesher first victory was named the top television moment of 2004 by viewersclearly brought the nation together during the Olympics. Two and a half times as many people watched England lose the match that my hon. Friend mentioned. I was interested to hear that the number of viewers increased during penalties. I suspect that if the people who genuinely watched the penalties were counted, the figures would drop dramatically, because it was a case of watching with our eyes shut. However, it was a special evening that brought the nation together.
	Indeed, when we think back to 1966, such occasions provide several moments that we continue to talk about. They can still be unifying factors even three and four decades on. There is no difference of opinion between my hon. Friends and me about that. Sport is about national identity and national pride. When we get it right, sport at its best allows us to be different and to support different teams in a collegiate and friendly manner. I agree with my hon. Friend about the importance of the list and sport.
	My hon. Friend, however, began by referring to the many, not the few. It is important to emphasise that even 21 million are the few, not the many. We must remember that a majority chose not to watch the penalties in the European championship match when England was knocked out. We must ensure that terrestrial television offers something for all viewers, whatever their interests. It is not a matter for Government, but perhaps terrestrial channels sometimes do not bid for some sports, especially cricket, because the matches last far longer than 90 minutes, plus 30 minutes for extra time and 15 minutes for penalties.
	Let me outline Government policy for listing sport. My hon. Friend reasonably mentioned the future. He made a generous speech, and although he expressed his unhappiness about the England and Wales Cricket Board's decision, he looked to the future and to safeguarding something important. Let me therefore bring us up to date by stating Government policy. As my hon. Friend said, it is important that key sporting events are made available to all television viewers, including those who cannot afford or choose not to spend their money in that way. That has led to the solid protection by law of the listed events.
	We all agree that we cannot possibly list all sports. The listed events are those that are believed to have a special national resonance. There is a dangerand an understandable trendamong sports enthusiasts that they want their sport listed so that they can watch it free on terrestrial television. However, that it not the purpose of the list, which is to involve the nation and ensure that the unifying factor can be brought to bear.
	The listing process was reviewed in 1998 to ensure that it was as open and transparent as possible. As my hon. Friend said, the Government consulted on the criteria and then appointed an independent advisory group to make recommendations on listing. It is worth putting on record the criteria on which consultation was held and that were subsequently agreed for listing events.
	Listed events must have a special national resonance and not simply be significant to those who follow the sport. They should unite the nation in a shared point on the national calendar. The Wimbledon finals are key examples. Consideration should be given to events that are likely to command a large television audience, such as pre-eminent national or international sports events and those involving the national team or national representatives.
	The advisory group to which my hon. Friend referred considered the number of events. At that point, the notion of groups A and B came into being. Perhaps if we had not split the list into groups A and B, we would not be conducting a debate today that is based on dissatisfaction about the decision about cricket. However, it could have appeared on list A, although obviously it was put on list B. That meant that it would no longer be guaranteed to be shown live on terrestrial television, and although I accept that cricket is popular, I believe that lists A and B as a mechanism have provided an alternative in sometimes difficult times for audience share and pleasing everybody. As well as list A, which guarantees live coverage, we have list B, which guarantees showing highlights at some point. And of course, Channel 5 was able to do that with cricket. I accept the argument that Channel 5 is not as readily available throughout the nation as other terrestrial channels, but the establishment of groups A and B has enhanced the number of opportunities for our citizens to watch key events, rather than reducing it.
	There is another side to this argument. When we talk about what sports terrestrial television is not able to broadcast, we must also remember that BSkyB is able to broadcast them. We should not therefore say that everything is lost if BSkyB gets a particular contract, as long as the rules are followed. Because of the way in which the market works, the price being paid for the television rights to both live broadcasts and recorded highlights is going up and up. I suspect that that is one factor that causes difficulty for the BBC and other terrestrial channels when they are considering their need to ensure that the wider audience is catered for. In regard to terrestrial channels other than the BBC, advertising revenue might be put at risk in certain circumstances.
	I hope however that my hon. Friend will consider it a good thing that, following the signing of the Central Council of Physical Recreation's voluntary code on sports broadcasting rights in 1997 by major organisations including the England and Wales Cricket Board, those organisations are now pledging 5 per cent. of their revenue from television to grass-roots schemes.
	We can always argue about which determining factor might have made a future captain of Australia's cricket team become the brilliant player that he or she might be. They could have watched great matches on television, and I do not argue with the contention that there is nothing like watching a live match to enthuse people and to allow them to dream. For young people, such dreams are important. Equally, however, the enhanced sports facilities at grass-roots level, paid for by that 5 per cent. of the television revenue, might have been a determining factor in that young person's life.
	This is a time of great change. Ten or 15 years ago, the issues involved would have been significantly different. At issue today is the number of viewers who can watch BSkyB and who have access to digital television. My hon. Friend rightly asked why the Government did not review the list in the light of the changes, and whether we would give an undertaking to do so. I certainly cannot give him an undertaking to put such a commitment into the manifesto, as he asked. However, I could give him an undertaking to review the list, because that is absolutely essential.
	We know from other deliberations that we have had in the House that, as we move towards 2012, and as my right hon. Friend the Secretary of State carries out her review of the BBC, we are in a time when things move fast. Predicting the future is becoming increasingly difficult. However, there will presumably be an increase in the number of people subscribing to Sky and other digital outlets in the next few years, alongside the growth of freeview. That will naturally change the landscape. Nevertheless, sports rights contracts run for a number of years, and I do not see a pressing need to pledge to review the list now, or to feel under pressure to do so, given that it was reviewed in 1998. But I recognise that the list has to reflect not only the changing views of broadcasting. I do not want to fall into the trap that my hon. Friend mentioned. This is not a policy for broadcasters; it is a policy for sport and for most people who watch sport through the medium of broadcasting, so the list also has to reflect the changing views of the sports concerned. Successes in certain events resulting in increased viewer loyalty could mean that the 1998 list should be reviewed in due course.
	Looking back, it is amazing how little the sports and events that one would assume to be the most popular have changed. My hon. Friend mentioned the most popular sports and they are, in the main, the same ones that bound the nation together when I was a teenager, which was more years ago than I care to remember. We must always bear in mind, however, the potential for changing views in sport. The switch to digital broadcasting, and the move towards a multi-channel environmentwhether subscription or free to airchange the landscape. I think it not unreasonable for the Government to pledge to take that into account, and to announce, at the appropriate time, what they will do about reviewing the list. I do not know when that will be. Things may be changing too quickly for us to be able to predict it, and certainly the Government have no plans to make an announcement or name a date yet.
	The debate is timely. I thank my hon. Friend the Member for Selby for initiating it, and thank my other hon. Friends for contributing. I think it behoves the Government to make it clear to broadcasters, citizens and sports players that although the arrangements may be set in stone now, they will not be set in stone for ever. We shall want to ensure that we make the necessary changes, so that the fundamental idea that live television coverage of these key events should be a great unifying force for the nation continues to hold.
	No doubt in future years my hon. Friend will be back, asking when the Government will review the list. Long may he continue to do so. I am grateful for the opportunity to put the Government's case during this short but important debate, and to confirm their commitment to listed sport.
	Question put and agreed to.
	Adjourned accordingly at one minute past Eleven o'clock.